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August 5, 1997


The opinion of the court was delivered by: DOLINGER



 Plaintiff Paula White-Ruiz has been a police officer in the New York Police Department for the past ten years. In October 1993 she filed this action under 42 U.S.C. § 1983, claiming that various officers and officials of the New York City Police Department have engaged in a course of harassment against her in retaliation for her having disclosed an instance of corrupt behavior by one of her fellow officers. Based on these allegations, she asserts that the defendants, including the City of New York, should be held liable to her for violation of her First Amendment right to speak freely.

 I have now conducted a bench trial of this case, extending over five and one-half trial days. Based on the evidence at trial, I find that, starting in 1988, plaintiff did in fact suffer from some forms of retaliation by unidentified police officers for having reported to appropriate Police Department officials a corrupt act by a fellow officer in 1988. I also conclude that the City of New York, through the actions or inactions of senior Police Department officials, bears legal responsibility for the proven misconduct of plaintiff's fellow officers. In addition, I find that the retaliation in question and the Police Department's manifested indifference to the plaintiff's vulnerability caused her injury in the form of emotional distress.

 The foregoing findings do not, by themselves, suffice to establish the liability of any of the defendants. Defendants have belatedly invoked a statute-of-limitations defense to limit the scope of plaintiff's viable claims for discrete acts of retaliation. For reasons to be noted, however, I conclude that plaintiff's claims are not time-barred.

 As noted, plaintiff seeks damages from various police officials and from the City. I conclude that plaintiff has failed to demonstrate that most of the named individual defendants participated in, encouraged or were otherwise responsible for the proven acts of retaliation. She has shown, however, that two of these defendants bear some legal responsibility for a portion of the proven misconduct. Moreover, she has established that the violation of her First Amendment rights is attributable to a practice or custom endorsed or acquiesced in by the responsible policymakers for the Police Department, and that the City is therefore liable for the proven violations of her constitutional rights.

 Given these limitations, I conclude that judgment should be entered in favor of plaintiff and against the City of New York in the amount of $ 90,000.00, and that defendants Sergeant James McDermott and Inspector Albert Girimonte should be held jointly and severally liable with the City in the amounts of $ 5,000.00 and $ 10,000.00, respectively, each representing a portion of the damages assessed against the City. I further hold that judgment should be entered for the other defendants dismissing the complaint.

 A. The Facts

 During orientation by the Department's Internal Affairs Division ("IAD") when plaintiff was starting her tour with the NSU, she was instructed that she should report instances of misconduct by her fellow officers. The IAD instructors also informed plaintiff and the other new recruits that if they reported corruption by other officers, their communications would be treated confidentially.

 On January 28, 1988, plaintiff was assigned to work with an Officer John Ward in the 66th Precinct. During the course of their patrol that day, they were required to guard the body of a deceased man in an apartment. As a result of certain actions taken by Officer Ward at the time, plaintiff came to suspect that her patrol partner had appropriated some money that he had found in the pockets of the decedent, and she reported her observations to the supervising officer who later came to the scene. Her report led to one or more interrogations of Officer Ward, who was placed the same day on modified duty, presumably because of suspicion of wrongdoing. The Department subsequently dismissed Ward, apparently for the misconduct reported by plaintiff.

 Within one day after the incident, an account of the event had been placed on the Department's internal teletype system. The report contained specific references to plaintiff, by name, and identified her as the source of information that had led to Officer Ward's changed status. This message was distributed or accessible to all precincts within the Department. That disclosure was inconsistent with the assurances of confidentiality that plaintiff had previously received from the IAD.

 Plaintiff reports, credibly and without contradiction, that her fellow officers at the 66th Precinct almost immediately began to shun her, that someone slashed her automobile tires and that the Commanding Officer of the precinct, a Captain Scagnelli, later advised her that she should consider a transfer to another precinct. Explaining this advice, the Commander told plaintiff that he was being reassigned and thus could not protect her in the future from possible retaliation for her actions in reporting Officer Ward. In view of the evident hostility of her fellow officers and the vandalism, plaintiff agreed to a transfer, and on February 4, 1988 she was reassigned to the 90th Precinct.

 Plaintiff testified, again credibly and without contradiction, that upon her arrival at her new precinct, she encountered evidence of hostility to her from some of her fellow officers and superiors. Thus, on her first day at the precinct she found the words "Black Bitch" scrawled on her locker, and one or more officers told her that they had been aware of her impending arrival, apparently through a departmental grapevine that had identified her as a "rat", or informer. In addition, when she met with the then- assigned precinct commander, a Captain Courtney, he warned her that she should not report what he apparently viewed as minor misconduct, such as officers accepting free services from local retailers. The clear implication of his comment was that her prior history had led both rank-and-file officers and the higher brass in the precinct to view her with suspicion and some hostility.

 Because plaintiff was pregnant, she soon was reassigned to the District Attorney's Office so that she could perform limited duties. She remained there until October 1988, when she returned to the 90th Precinct.

 According to plaintiff, from the time when she was reassigned to the 90th Precinct in October 1988 until the present, she has been subjected to an unrelenting campaign of harassment by fellow officers and supervisors, presumably in retaliation for her having disclosed Officer Ward's misconduct. She further complains that the Department has shut its institutional ears to her complaints of mistreatment and has indeed encouraged or at least plainly acquiesced in the very misconduct about which she has complained.

 1. Experiences at the 66th Precinct

 Plaintiff testified without contradiction that the disclosure of her role in the Officer Ward incident immediately triggered a wave of expressed hostility and harassment directed against her in the days after the incident. I credit her testimony that her fellow officers in the 66th Precinct were open in their expressions of anger and suspicion and that she suffered the vandalism of her automobile. Moreover, I further credit her unrebutted testimony that the precinct commander was sufficiently aware of the situation that he advised her by early February 1988 to transfer to another precinct in view of his own impending departure from the 66th Precinct.

 * * * *

 The balance of my findings concern plaintiff's experiences after her transfer in February 1988 to the 90th Precinct. I start by addressing discrete incidents to which plaintiff testified and then consider certain conditions alluded to by plaintiff that were of a more continuing and long-term nature.

 2. Interference with Radio Communications and Radioed Name-Calling

 Plaintiff asserts that on a number of occasions when she was on patrol, she attempted to communicate by radio with headquarters and was prevented from doing so by the deliberate interference of one or more fellow officers. Plaintiff explains that this was accomplished by the officers "keying down" on their own radios at the same time and on the same frequencies, thus frustrating her ability to communicate with the precinct.

 Although plaintiff suggested at one point in her testimony that this had happened frequently, when examined in more detail she asserted that it had occurred once in early 1988, when she was still at the 66th Precinct, then twice during her patrol on the evening of December 19, 1988 and finally several times in 1989 and 1990. The corroborating evidence, in the form of a Department investigatory memorandum, refers, inter alia, to a series of incidents on December 19, 1988. The report, which was triggered by a complaint lodged by plaintiff, contains an excerpt from radio communications of that night, and it indicates that one or more officers apparently interfered repeatedly with plaintiff's transmissions that evening. (PX 65; see also PX 80).

 Plaintiff offered no independent evidence of other incidents of this sort, and I find that her general allusion to the asserted repetition of this type of event is not credible. Certainly at that period she was prepared to press grievances within the Department, and if she had done so in these instances, I would expect to find some indication of a complaint. Plaintiff conceded that she had not brought any other such incident to the attention of the Department, and I infer that her reticence is attributable to the absence of such a triggering event. Further support for this conclusion is the lack of any specificity in plaintiff's testimony about such other asserted incidents, which is quite inconsistent with her demonstrated ability to recount instances of harassment in considerable detail.

 In a related vein, plaintiff credibly testified that on one occasion, on November 5, 1988, she heard one officer call her a "rat" and a "cheese eater" on her car radio. (PX 80). Indeed, these remarks were recorded by a Department tape recording system and were transcribed as part of a Departmental investigation of this and other incidents reported by plaintiff. (PX 76). Plaintiff identified the responsible individual at trial as an Officer McGrory, who was assigned at the time to the 90th Precinct, although she did not name him as a defendant in this case.

 3. Refusal to Provide Back-Up

 Plaintiff testified that on the same evening as the keying-down incidents in December 1988, she approached a vehicle in which several males were riding who appeared to be potentially dangerous. According to plaintiff, she requested assistance from fellow officers, but all of the officers reached by radio declined to come to her assistance, thus subjecting her to danger from the automobile occupants. Plaintiff reported that she was ultimately assisted by a Housing Authority patrolman, although no arrests eventuated from this encounter.

 Apart from plaintiff's testimony about this incident, the only evidence concerning the pertinent details is a report of investigation which describes a series of interviews of some of the officers who were on patrol that evening and summarizes certain findings from a review of radio transmissions. (PX 80). From this congeries of evidence -- including plaintiff's account -- I am inclined to conclude that what occurred represented willful non-cooperation with plaintiff by some of her fellow officers, although it is not at all clear that the non-cooperation took the form of an outright refusal to come to her assistance.

 It appears that one officer failed to come because he was assigned to a fuel spill. Whether anyone else was asked to come is not clear. Nonetheless, the report confirms that at one point plaintiff asked for a check of a vehicle identification number and that the officer with the computer used for this purpose falsely told her that he had found no match when in fact he never ran the number through his computer. *fn1" It is also clear that throughout several encounters that plaintiff had that evening with other vehicles, one or more officers repeatedly and deliberately interfered with her radio transmissions, with the evident goal of disrupting her ability to perform her work on her patrol. (PX 80).

 In short, there is no real question that on that occasion officers were intent on preventing her from carrying out her responsibilities, irrespective of whether this behavior endangered her safety or that of the public. I view this conduct as probably a reflection of a prevalent attitude within the precinct at the time that she was to be isolated and, in effect, punished for her conduct with regard to Officer Ward, even if this approach endangered her physical safety. I also credit her unrebutted testimony that the Department investigators never disclosed the results of the investigation to her, and that this incident and the unresponsiveness of the investigators triggered considerable distress on her part because she felt both isolated and extremely vulnerable when patrolling high-crime neighborhoods without any assurance that her fellow officers would come to her assistance in time of need.

 Notwithstanding this conclusion, I note that plaintiff cites no other comparable incident. That being the case, I infer that this particular source of insecurity diminished over time.

 4. Anonymous Letter

 Plaintiff reports that sometime in June 1989 she received in the mail at her home an envelope containing a copy of a Police Department memorandum announcing the discharge of Officer Ward. This document was not accompanied by any other form of communication or any identification of the sender. Since each officer's home address was required to be kept confidential by the Department, plaintiff suggests that the sending of this letter reflected not only a desire to retaliate on the part of the sender -- presumably a fellow officer -- but also the cooperation of others at the precinct, who were willing to go so far as to breach security.

 5. Anonymous Calls At Home

 Plaintiff testified that during late 1988 she received a series of harassing telephone calls at home, and complained to the Department. She offered very little information as to what, if anything, was said during these calls or as to their frequency, and provided no specific basis for her assumption that fellow officers at the precinct were responsible. In any event, the Department provided her with a tape machine to record any such calls, and once she installed the tape recorder the calls stopped.

 Given the paucity of detail offered by plaintiff, I am not prepared to assume that the calls were triggered by her reporting of Officer Ward. If plaintiff had described what occurred during the calls, whether comments by the caller or stony silence, I might be in a better position to make a judgment on the matter, but in the absence of obviously pertinent information, I deem this allegation to be unproven.

 6. The Dead Rat

 According to plaintiff, sometime in 1990 she discovered a dead rat lying on the street immediately adjacent to her car. She attributes this to unidentified fellow officers, although she did not lodge a complaint with her precinct. Given the specificity of her testimony and its similarity to practices observed by the so-called Mollen Commission in its subsequent report on patterns of harassment within the Department, (see PX 61 -- COMMITTEE TO INVESTIGATE ALLEGATIONS OF CORRUPTION AND THE ANTI-CORRUPTION PROCEDURES OF THE POLICE DEPARTMENT, COMMISSION REPORT: ANATOMY OF FAILURE: A PATH FOR SUCCESS, at 51-60 (July 7, 1994) ("Report")), I credit this account.

 7. Paint Scratches

 Plaintiff testified that on several occasions in 1991, she found new scratches on the body of her car. She speculated that these instances of vandalism were attributable to unidentified officers. Apart from general evidence of Department hostility to her, she relied on the assertion that the scratches on her car bore paint color similar to the blue paint that is used on Department vehicles.

 It is not entirely clear whether plaintiff's car was parked on the street in each of these instances, although I so surmise. It is of course entirely possible for cars parked on a public thoroughfare in New York City to suffer damage, particularly paint scratches, from a host of causes entirely unrelated to hostility from local police officers. Nonetheless, given the persuasive evidence that plaintiff was viewed with considerable hostility by a number of officers in this time period and was the target of other forms of harassment, as well as the apparently repetitive nature of these incidents, I am inclined to view at least some of these incidents as probable marks of retaliation by unidentified officers.

 8. Disparagement to Plaintiff's Husband

 Plaintiff also testified that some time in 1988 an unidentified Department employee telephoned her husband and accused her of having an affair with another officer in the precinct. According to plaintiff, this communication was both false and designed to destroy her marriage. She and her husband later separated, and she attributes the failure of her marriage, at least in part, to the stress caused not only by her mistreatment and resultant depression, but also by this false rumor.

 Plaintiff has no direct knowledge of any such effort to incite her husband, much less the source of such a communication, if indeed one was ever received. I view this allegation as simply unproven.

 9. Being Followed

 10. Daily Assignments

 Plaintiff spent considerable time at trial seeking to demonstrate that she had been subjected to a pattern of discriminatory assignments, purportedly in retaliation for having disclosed Officer Ward's misconduct to her superiors in 1988. Unlike many of the incidents to which I have alluded, this misconduct allegedly continued until 1994 or later.

 The asserted unfairness is said to have taken two forms. First, her superiors frequently assigned her to tasks that gave her little or no chance to advance through the ranks of the Department, principally because they denied her the opportunity to make arrests, which is apparently a hallmark of achievement within the Department. These undesirable assignments, in which she was often assigned to work with a fellow outcast, Officer Hector Ariza, included such tasks as monitoring the precinct telephone or parking lot, accompanying senior officers in their squad cars, guarding violent prisoners committed to a local psychiatric ward, and other so-called fixed-post duties, including strike duty. *fn2"

 Second, plaintiff complained about the alleged frequency of her assignment to unpleasant or dangerous tasks. These included guarding violent prisoners, watching over corpses, and patrolling union picket lines. The strike assignments, apart from their assertedly boring nature, were allegedly made still more unpleasant by virtue of the rule that, when on this form of patrol, she was not permitted to sit in a police van even if one was on the scene. Plaintiff complained that she and Officer Ariza were held to this regime even though other officers were permitted to ignore that restriction, a particularly onerous form of discrimination in the winter months.

 I credit plaintiff's uncontradicted assertion that she and Officer Ariza were treated differently from other officers while on strike duty, and specifically that they were exposed to the elements in winter while other officers were permitted, apparently improperly, to warm themselves in a police van. Plaintiff's more serious assertion, however, that she suffered from discriminatory assignments, is simply unproven. At the very least I would expect some concrete demonstration of the comparative frequency of her assignment and that of other officers to less favored posts, particularly since the precinct maintains records of all such assignments. Plaintiff failed, however, to proffer such evidence at trial, and offered no viable explanation for this failing.

 I note that there are two sets of records of assignments of each officer, one reflecting initial assignments and the other recording changes of assignment during a tour. In addition, each officer is required to maintain a separate memo book in which he or she records all pertinent events of each patrol day, including assignments and changes of assignments, as well as absences and various forms of leave, whether for vacation or medical reasons. From this set of data plaintiff could have reconstructed the frequency with which each officer in the precinct received any form of assignment or change of assignment.

 Plaintiff offered no such evidence. Rather she proffered simply a log of reassignments during a portion of the period from 1990 and 1991 (PXs 87-88), and her own testimony to the effect that she had received many unfavorable assignments. In response to questioning, plaintiff insisted that her assignments reflected a disproportionate number of undesirable posts, but she could not offer any specifics in that respect.

 The most basic failing in this aspect of her case is the absence of data on the assignments of other officers in the precinct for any time period. Although plaintiff's counsel first indicated that he had been unable to obtain these records from the City by subpoena, when confronted with the representation by defendants' attorney that the City had never received such a request, he chose to forgo pressing the matter. I accordingly must infer that counsel never subpoenaed these records.

 The records that plaintiff did proffer -- those listing reassignments during a tour -- suffer from two obvious defects. First, they do not reflect the relevant universe, which is all assignments of officers in the precinct, but rather indicate only those instances when an officer's assignment is changed during his or her tour. Second, plaintiff offered no analysis even of those fragmentary records to demonstrate the frequency of her reassignment to undesirable posts, as compared with the reassignment of other officers. *fn3" Moreover, a review of the documents simply does not disclose any discernible pattern in the reassignment of plaintiff to disfavored tasks, at least as compared with other officers' reassignments.

 As for plaintiff's own testimony about this matter, it was simply not reliable. First, plaintiff professed to have relied upon a review of her own memo books in characterizing the frequency of her assignment to such tasks as guarding a body or a psychotic prisoner, strike duty or other fixed post patrol. Yet, when she was required, during her testimony, to review those memo books and calculate the number of times that she had actually been assigned to these tasks, she reported far fewer such assignments than suggested in her original testimony.

 In a related vein, plaintiff complained about the denial of several requests by her for special "steady" assignments, which she viewed as desirable because they would accord better with her special scheduling needs as a single parent. In particular, she cited several unsuccessful requests for assignment to the so-called Community Policing Program ("C-POP"). She further testified that on several occasions when she had asked Lieutenant Marra to be considered for such an assignment, he told her that there were no openings, and yet she later learned that there had been an opening at the time and that it had been filled by another officer within days after her request.

 Again, I am not persuaded that the denial of these requests was triggered, in whole or in part, by an intention to retaliate against her. As a general matter, a plaintiff seeking to demonstrate discrimination (or retaliation) in promotions or assignments must establish at a minimum that she applied for an open position, that she was qualified for the position, that she was not given the assignment and that this denial occurred in circumstances suggesting that the refusal was motivated by a discriminatory animus. See, e.g., Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997)(en banc). Moreover, even if she meets this initial burden, the defendants may proffer a non-discriminatory reason for denying her the position, and in that event the plaintiff must demonstrate that the proffered reason is pretextual and that the real reason was discriminatory or retaliatory in nature. Id.

 The absence of a malign intent in this regard is also underscored by the fact that, when plaintiff was legitimately qualified for the assignment, she received it. By 1993 her attendance had substantially improved, and then-Commander Girimonte therefore assigned her to the C-POP program in February 1993, although she ultimately withdrew from it in August 1994.

 11. Promotions and Transfers

 Plaintiff also complained, albeit in very general terms, that she had been denied promotions or transfers because of her controversial status in the Department. The difficulty with her case on this point is the absence of any specifics. Plaintiff failed to establish which positions she applied for and whether she was qualified for them. Although she indicated a desire to be considered for such specialized units as the K-9 Corps and the Highway and Mounted Units, I lack the most basic information as to when she applied, whether openings were available, what qualifications were required, whether plaintiff had those qualifications, who was selected in her place, and what credentials they had for the job.

 The absence of such proof is by itself fatal to plaintiff's claim in this respect. Moreover, given what I know of the background here, including particularly plaintiff's absenteeism problems -- a pattern that persisted over a number of years, including the period when she claims that she was denied such promotional opportunities -- I am quite skeptical that she could demonstrate both that she was ...

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