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PATROLMEN'S BENEV. ASS'N v. CITY OF NEW YORK

September 17, 1999

PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INCORPORATED, FOR ITSELF AND ON BEHALF OF ITS MEMBERS, POLICE OFFICERS GARY JOHNSON, MISSIE LEWIS-MANNING, ROBERT DRAYTON, MARVA GARDNER, DEMETRIA SINGLETON, MARGO MCKENZIE, ROBERT WINSLOW, KENNETH ZEPHRIN, OSCAR ESPINAL, DAVE GUEVARA, PEGGY ALVES, ROBIN IRVIN, SILAS PLUNKETT, RONNY FORBES, ALTON WALKER, BARRY HINDS, TSELANEE KITCHING, LAVERNE STUGER, MICHAEL BUTLER, CAROLE P. SIEVWRIGHT, INGER BARRON, AND RONALD S. ARCHER, PLAINTIFFS,
v.
THE CITY OF NEW YORK, RUDOLPH GIULIANI, AS MAYOR OF THE CITY OF NEW YORK AND INDIVIDUALLY, HOWARD SAFIR AS POLICE COMMISSIONER OF THE CITY OF NEW YORK AND INDIVIDUALLY, NEW YORK CITY DEPUTY POLICE CHIEF PATRICK BRENNAN, OFFICIALLY AND INDIVIDUALLY, DEPUTY POLICE CHIEF CORNEILIUS J. DEVER, OFFICIALLY AND INDIVIDUALLY, CHIEF MICHAEL A. MARKMAN, OFFICIALLY AND INDIVIDUALLY, PATRICK J. KELLEHER, FIRST WEST PAGE 322 DEPUTY COMMISSIONER, OFFICIALLY AND INDIVIDUALLY, SGT. DEBORAH PETERS, OF THE PATROL BOROUGH CHIEF'S OFFICE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, PATROL CHIEF WILBUR CHAPMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS.



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

OPINION AND ORDER

TABLE OF CONTENTS

    I. Introduction ............................................................................ 324
   II. Background .............................................................................. 325
  III. Legal Standard for Summary Judgment ..................................................... 326
   IV. Discussion .............................................................................. 326
       A. Plaintiffs' Equal Protection Claim ................................................... 326
          1. "Operational Needs" May Constitute a Compelling State Interest .................... 327
 
          2. Whether Action Was "Narrowly Tailored" Remains Disputed Question of Fact
             Precluding Summary Judgment ....................................................... 330
             a. Flexibility and Duration ....................................................... 330
             b. Efficacy of Alternative Remedies ............................................... 331
       B. Plaintiffs' Title VII Claim .......................................................... 332
          1. Legal Analysis Applicable to Cases Involving Direct Evidence of Discrimination .... 332
          2. Issue of Whether Transfer Was An Adverse Employment Action Precludes Summary
             Judgment .......................................................................... 333
             a. What Constitutes an "Adverse Employment Action" ................................ 333
             b. Facts at Issue ................................................................. 335
          3. Defenses Available Under Title VII ................................................ 337
             a. Bona Fide Occupational Qualification Exception ................................. 337
             b. Valid Affirmative Action Plan .................................................. 338
    V. Conclusion .............................................................................. 339

I. Introduction

The Patrolmen's Benevolent Association of the City of New York ("PBA"), brings this employment discrimination action against defendants, the City of New York and the New York City Police Department ("NYPD"), on behalf of itself and twenty-two black and black-Hispanic police officers who were involuntarily transferred to the 70th Police Precinct in August 1997, following the torture and beating of Abner Louima.*fn1 Plaintiffs allege that defendants' consideration of their race, color and national origin in deciding to transfer them from one precinct to another violated the equal protection clause of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., as amended, 42 U.S.C. § 1981, 1983 and 1985 and the New York State Human Rights Law. Plaintiffs seek monetary damages and injunctive relief. Defendants do not dispute that race was the basis for the transfer decision. Rather, defendants argue that their actions were justified by exigent circumstances in the community patrolled by the 70th Precinct.*fn2

Defendants now move for partial summary judgment on plaintiffs' equal protection claim, asserting that "operational needs" is a legally cognizable defense to claims of improper race-based transfers of police officers. Defendants also move to dismiss plaintiffs' Title VII claim, alleging that plaintiffs have failed to allege an adverse employment action. Plaintiffs have cross-moved for summary judgment on their equal protection claim, contending that defendants' transfer decision was not narrowly tailored to meet a compelling state interest. In addition, plaintiffs have moved for partial summary judgment on their Title VII claim to exclude certain defenses to that claim.

The facts of this case are unique. Never before has the New York City Police Department resorted to race-based transfers of police officers in response to a crisis. At the outset, it is also important to note that:

  [a] discussion of the police function is essentially
  a description of one of the basic functions of
  government, especially in a complex modern society
  where police presence is pervasive. The police

  function fulfills a most fundamental obligation of
  government to its constituency.

Foley v. Connelie, 435 U.S. 291, 297, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978) (New York statute requiring U.S. citizenship for members of state police force did not violate the equal protection clause under rational relationship test). Moreover, the legal issues involved are singular. The legality of a municipal program to improve law enforcement efforts by adopting a race-conscious hiring or promotion program is typically challenged by white applicants alleging "reverse discrimination" in violation of the equal protection clause or Title VII. See, e.g., Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992) (white male denied acceptance in police recruit class challenged affirmative action plan that resulted in hiring of minority and female applicants with lower examination scores); Peightal v. Metropolitan Dade County, 940 F.2d 1394 (11th Cir. 1991) (white male denied position as firefighter challenged affirmative action plan that resulted in hiring of 57 minority or female applicants with lower examination scores); Fountain v. City of Waycross, 701 F. Supp. 1570 (S.D.Ga. 1988) (white officer ranked first on promotion list challenged affirmative action plan that was used to promote black officer ranked seventh). Here, however, minority plaintiffs allege that they were victimized by the NYPD's race-based transfer program, intended to improve police/community relations in minority neighborhoods.

II. Background

On August 9, 1997, Abner Louima, a black man of Haitian national origin, suffered a brutal beating and sexual torture at the hands of several white police officers within the confines of the 70th Precinct station house in Brooklyn, New York. A meeting at New York City Police Headquarters was convened two days later in response to the incident. In attendance were Mayor Rudolph W. Giuliani, Police Commissioner Howard Safir, other police officials, members of the clergy and community leaders, including New York City Council Member Una S.T. Clarke. See Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts ("Defs.' 56.1") ¶ 3. Councilwoman Clarke is the elected City Councilwoman from New York City's 40th District, Brooklyn. Her jurisdiction includes Precincts 67, 70 and 71. Following that meeting, Commissioner Safir decided to deploy more black police officers to the 70th Precinct. See Deposition of Commissioner Safir, February 5, 1999 ("Safir Dep."), Ex. A, at 54.

On August 12, reports of the Louima incident began to appear in the media. The next day, the first of several demonstrations, involving thousands of protestors, was held at the 70th Precinct. Defs.' 56.1 ¶ 9. Police and city officials became concerned that these demonstrations might result in violence. Defs.' 56.1 ¶¶ 10, 11. As a result, on August 14, five days after the Louima incident, Mayor Giuliani and Commissioner Safir publicly announced that the Commanding Officer and Executive Officers of the 70th Precinct, both of whom were white, as well as ten police officers assigned to that precinct, would be immediately reassigned. Defs.' 56.1 ¶ 12. In their place, Raymond Diaz, who is Hispanic, was quickly appointed Commanding Officer, and George Clouden, who is black, was named Captain. Defs.' 56.1 ¶ 12.

On August 16, seven days after the Louima incident, approximately ten or twelve police officers, of whom approximately half were black, were transferred into the 70th Precinct. Defs. 56.1 ¶ 14. On August 19, eight days after making the decision to transfer black officers into the precinct, Commissioner Safir announced that minority police officers would be transferred into the 70th Precinct, and that the City would recall the Haitian-American police officers who had been on a leave of absence to Haiti to help reform the notoriously brutal Haitian police force. Defs.' 56.1 ¶ 16.*fn3 Also on the 19th, the Mayor created a Task Force on New York City Police/Community Relations. Defs.' 56.1 ¶ 17.

On August 25, two weeks after Commissioner Safir's decision to deploy black officers, approximately twenty-seven police officers within the Command known as Patrol Borough Brooklyn South — including all of the plaintiffs — were involuntarily transferred to the 70th Precinct. All twenty-two plaintiffs transferred on August 25 are black and identify themselves as African-American, Black-Hispanic, Jamaican, West-Indian, Trinidadian or Guyanese. Pls.' 56.1 ¶¶ 12-54.*fn4

On August 29, a rally and demonstration protesting the Louima incident began at Grand Army Plaza in Brooklyn and continued over the Brooklyn Bridge to City Hall. Demonstration organizers notified police and city officials at least ten days in advance of their intention to hold the rally. Defs.' 56.1 ¶ 15. Following the rally, a number of individuals were arrested in Brooklyn and charged with disorderly conduct. Defs.' 56.1 ¶ 24. Demonstrations continued to occur outside the 70th Precinct station house for several days after the August 29 rally. Defs.' 56.1 ¶ 25. On October 23, 1997, less than one month after their involuntary transfer, plaintiffs filed the instant action.*fn5

III. Legal Standard for Summary Judgment

A motion for summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 436 (2d Cir. 1999). When considering a motion for summary judgment, the court must draw all factual inferences and resolve all ambiguities in favor of the nonmoving party. See id. The moving party has the burden of identifying the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). This is true even though the court is presented with cross-motions for summary judgment. Each movant has the burden of presenting evidence to support its motion. See Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir. 1988).

IV. Discussion

A. Plaintiffs' Equal Protection Claim

Governmental classifications based on race are inherently suspect under the equal protection clause and subject to strict judicial scrutiny. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); Richmond v. J.A. Croson, 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). To satisfy a strict scrutiny analysis, a race-based classification must promote a compelling governmental interest and be "narrowly tailored" to meet that interest. In re Griffiths, 413 U.S. 717, 721-22, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). Although race-based actions merit the highest judicial scrutiny, the Supreme Court has emphasized that it wishes "to dispel the notion that strict scrutiny is `strict in theory, but fatal in fact.'" Adarand, 515 U.S. at 237, 115 S.Ct. 2097 (quoting Fullilove v. Klutznick, 448 U.S. 448, 519, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (Marshall, J., concurring in judgment)). Accordingly, it is possible for a race-based classification to survive this standard of review.

1. "Operational Needs" May Constitute A Compelling State Interest

Defendants move for summary judgment on the issue of whether a police department's "operational needs" may constitute a compelling state interest.*fn6 Resolving the issue of whether such an "operational needs" defense is legally cognizable does not mean that the facts of this case automatically fall within any such defense. Indeed, the burden of proving whether the circumstances present in the 70th Precinct during August 1997 justify an operational needs defense rests with defendants.

The need to integrate a police force, under certain circumstances, can meet the compelling state interest requirement of the strict scrutiny test. Typically, a compelling governmental interest results from the need to remedy past discrimination by the police department. See, e.g., Bridgeport Guardians v. Members of the Bridgeport Civil Serv. Comm'n, 482 F.2d 1333, 1341 (2d Cir. 1973) (approving hiring quotas for minority police officers on grounds of past discrimination and noting that "visibility of the Black patrolman in the community is a decided advantage for all segments of the public at a time when racial divisiveness is plaguing law enforcement"); Detroit Police Officers' Assoc. v. Young, 608 F.2d 671 (6th Cir. 1979) (uncontroverted evidence of historical racial discrimination by police department justified voluntary affirmative action program). To succeed on a traditional "operational needs" defense, defendants must show a compelling governmental interest by establishing: (1) that discrimination against the black community has characterized law enforcement in the past; (2) that this discrimination has engendered hostility between black community members and the police; and (3) this hostility has made law enforcement in the community ineffective. See Race as an Employment Qualification to Meet Police Department Operational Needs, 54 N.Y.U. L.Rev. 413, 427 (1979) (hereinafter "Race as an Employment Qualification"). However, defendants here do not rely on the theory of past discrimination to justify their operational needs defense.

Rather, relying on portions of Justice Lewis Powell's opinion in Bakke, defendants suggest that race-conscious decisions can survive strict scrutiny for reasons other than curing the ill effects of past discrimination. See Bakke, 438 U.S. at 313, 98 S.Ct. 2733 (goals of creating diverse student body and providing health care to underserved communities characterized as compelling governmental interests). Defendants argue that despite the absence of past discrimination, the NYPD's responsibility to reestablish effective law enforcement after it has been impaired by community hostility provides an equally compelling state interest. This particular issue is one of first impression in this Circuit. Courts in other ...


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