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WRIGHT v. SAFIR

November 10, 1997

ANNETTE WRIGHT, Plaintiff,
v.
HOWARD SAFIR, NEW YORK CITY POLICE COMMISSIONER, and Chairman of the Board of Trustees of the Police Pension Fund and the Police Pension Fund, the Article II Medical Board, and WILLIAM BRATTON, as former POLICE COMMISSIONER, Defendants.



The opinion of the court was delivered by: RAKOFF

 JED S. RAKOFF, U.S.D.J.

 Plaintiff Annette Wright claims that the eight administrative hearings she had in connection with her forced retirement from the police force were insufficient due process. The Court concludes, by contrast, that she has received her due.

 Ms. Wright brings this action pursuant to 42 U.S.C. ยง 1983, alleging that the proceedings that resulted in her being involuntarily retired from the police force on the grounds of mental disability violated her constitutional rights. Following discovery, both sides moved for summary judgment. Upon review of the papers and the oral argument held on May 21, 1997, the Court hereby grants summary judgment in favor of the defendants, for the following reasons.

 The essential facts are undisputed. On January 9, 1990, plaintiff, a tenured New York City police officer appointed on July 30, 1987, wounded her police officer boyfriend, Randolf Hoover, with a knife. Plaintiff was suspended from duty, and subsequently pleaded nolo contendere to a disciplinary charge of wrongfully causing injury to Hoover. On February 15, 1990, plaintiff was removed from suspension status, referred to the Psychological Services Unit ("PSU"), and placed on restricted duty. While on restricted duty, plaintiff was monitored by supervisory lieutenants and by representatives of the PSU, the latter including a Police Department consulting psychiatrist, Dr. Abraham Pinsky. Plaintiff was also examined by her own retained psychiatrist, Dr. James Cavenaugh.

 In 1991, both Dr. Pinsky and Dr. Cavenaugh concluded, based on separate interviews with plaintiff, that plaintiff was fit to return to full duty. However, two Police Department psychologists and two other PSU doctors who examined plaintiff in 1992 reached the opposite conclusion, based in part on evidence from plaintiff's work supervisors that plaintiff continued to have serious confrontations with her co-workers. PSU therefore recommended that plaintiff be mentally "surveyed" by the three-doctor police Medical Board. The Police Commissioner adopted the recommendation, and ordered that plaintiff be surveyed by the Medical Board to determine whether she was mentally fit for active police duty.

 On March 1, 1993 plaintiff was surveyed by the Medical Board. Pursuant to the procedures then in place, plaintiff's counsel was not permitted at the hearing itself, although counsel submitted a substantial written presentation to the Board. See Declaration of Lisa Lempel-Sanders, Ex. 13. Following the hearing, the Board issued a detailed written report recommending that plaintiff be retired on disability. Id. at Ex. 15. On May 12, 1993, pursuant to statutory procedure, the Board of Trustees of the Police Pension Fund, having received written objections from plaintiff's counsel, reviewed the Medical Board's recommendation, and remanded the case to the Medical Board for further consideration in light of possible new evidence. Id. at Ex. 16.

 On November 1, 1993, plaintiff was examined by the Medical Board for a second time, after which the Medical Board issued another report assessing the "new" evidence and reaffirming its previous recommendation. Id. at Ex. 17. Plaintiff's counsel appealed again to the Board of Trustees. On April 13, 1994, after again reviewing the recommendation of the Medical Board and the further objections of plaintiff's counsel, the Board of Trustees yet again remanded the case to the Medical Board, this time specifying particularized questions for the Medical Board to answer. Id. at Ex. 19.

 On July 25, 1994, the plaintiff went before the Medical Board for a third time, after which the Medical Board issued a third report that both specifically answered the questions posed by the Board of Trustees and reaffirmed its previous recommendation. Id. at Ex. 20. After receiving the objections of plaintiff's counsel, the Board of Trustees once again reviewed the recommendation of the Medical Board and, on March 15, 1994, once again remanded the case, this time so that the Medical Board could reconsider the case pursuant to new proposed due process standards applicable to psychological disability cases that were about to be adopted but that had not been in place previously. Id. at Ex. 22. The new procedures required, inter alia, that an officer being surveyed by the Medical Board be given fair notice, an opportunity to object, an opportunity to review all files under consideration by the Medical Board, an opportunity to retain a medical professional to appear before the Medical Board on the officer's behalf and present evidence, and an opportunity on appeal for the officer or her attorney to present written arguments and new evidence to the Board of Trustees. Id. at Ex. 23.

 On March 18, 1996, the Medical Board reviewed plaintiff's case for a fourth time, pursuant to these new procedures. In the interim, an updated psychological evaluation of plaintiff had been conducted on February 2, 1996 by Dr. Andrew Propper, the senior psychologist with the PSU, who concluded that plaintiff was not psychologically fit for duty. At the March 18 hearing, plaintiff, who had been made aware of the updated evaluation and the new procedures, neither availed herself of the opportunity to retain a medical professional to speak on her behalf before the Medical Board nor presented any new evidence on her psychological condition. Once again, the Medical Board issued a written report recommending plaintiff's retirement for mental disability. Id. at Ex. 25. This time, however, the Board of Trustees, by an evenly-divided vote, adopted the recommendation of the Medical Board and on April 17, 1996 approved the police commissioner's recommendation that plaintiff be retired on ordinary disability as mentally unfit. Id. at Ex. 26. Plaintiff's retirement was effective as of June 15, 1996. She timely commenced this action on May 8, 1996.

 In now moving and cross-moving for summary judgment, the parties are in agreement that plaintiff, as a tenured police officer, had a property interest in her job of which she could not be deprived without due process, see Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985), as well as a constitutional liberty interest similarly implicated by her involuntary termination for mental incapacity. See Lombard v. Bd. of Educ. of City of New York, 502 F.2d 631, 637-38 (2d Cir. 1974), cert. denied, 420 U.S. 976, 43 L. Ed. 2d 656, 95 S. Ct. 1400 (1975). Thus the central disputed issue is whether the defendants' procedures for involuntary retirement for psychological disability afforded plaintiff adequate due process under the Fourteenth Amendment.

 Due process is a flexible notion that "calls for such procedural protections as the particular situation demands." Basciano v. Herkimer, 605 F.2d 605, 609 (2d Cir. 1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858 (1979) (citation omitted). In Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), the Supreme Court set forth three factors to consider in determining whether administrative procedures are constitutionally sufficient:


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