United States District Court, Southern District of New York
November 27, 2000
YVETTE WALTON, PLAINTIFF,
HOWARD SAFIR, COMMISSIONER OF THE NEW YORK CITY POLICY DEPARTMENT AND THE CITY OF NEW YORK, DEFENDANTS.
The opinion of the court was delivered by: Hellerstein, District Judge.
DECISION AFTER TRIAL (FINDINGS OF FACT AND CONCLUSIONS OF
On April 19, 1999, Plaintiff Yvette Walton was dismissed as a
police officer after twelve years of service. She complains that
she was terminated by defendant Howard Safir, the former
Commissioner of the New York City Police Department, in
retaliation for publicly criticizing the Department regarding
what she claimed were the racially discriminatory policies of
its Street Crime Unit. In particular, Walton claimed in her
criticism that those policies led to the killing of Amadou
Diallo. Plaintiff sues Safir and the City, pursuant to
42 U.S.C. § 1983, for violating her rights under the First Amendment of
the United States Constitution.
Defendants deny that plaintiffs termination was related to her
public statements. They counter that since she was on
probationary status following an administrative trial and
finding of insubordination, and since she again violated
departmental orders regulating sick leave, the termination of
her employment was according to procedure and justified.
The case was tried to the Court without a jury on July 11,
July 12, July 13, and July 19, 2000. On the basis of the trial
record, supplementary information thereafter submitted pursuant
to my requests to the parties, and post-trial briefing, I find
for the plaintiff. My opinion, constituting my findings of fact
and conclusions of law pursuant to Rule 52 of the Federal Rules
of Civil Procedure,*fn1 follows.
In April 1993, soon after the New York City Police Department
launched its Street Crime Unit initiative ("SCU"), Yvette
Walton, a six-year veteran, was recruited to join. The SCU was
to be an elite, centrally-based, aggressively interventionist
police unit, cruising the streets of the most crime-ridden areas
of the City, searching for and apprehending drug-dealers,
illegal gun possessors and perpetrators of violent crimes.
Walton, one of only three African-American women who joined the
Unit, was the only African-American woman assigned to street
patrols. Reports indicate that she was an effective police
officer, gaining eighteen commendations for her police work. In
March 1995, however, pursuant to her request, she transferred
out of the unit. She sought the transfer based on her belief
that the Unit engaged in racially discriminatory practices that
disproportionately targeted minorities in illegal search and
Four years later, on February 4, 1999, Amadou Diallo, a black,
West African immigrant, was shot and killed by several SCU
officers during a search for a rape suspect. The shooting
prompted Walton, at the invitation of a group called "100 Blacks
in Law Enforcement Who Care,"*fn2
("100 Blacks"), publicly to criticize the SCU for its tactics
and for the allegedly anti-minority attitudes of its officers.
Walton, basing her comments on her experiences as a former
member of the Unit, expressed her criticism at a February 14,
1999 press conference aired on several New York City television
stations. She appeared in disguise, wearing a black leather
jacket, a heavy gray hood, dark glasses, and a white and black
scarf drawn tightly across her face. Her voice was
electronically altered on all the broadcasts. However, her sex
could be detected in a picture that revealed her stockings and
shoes. Additionally, hints could be found in one reporter's
introduction of Walton as a former Street Crime Unit officer who
would be discussing "the Unit's discrimination and the violation
of civil rights." This reporter stated: "that's why she left."
Approximately two weeks later, on February 19, 1999, Walton,
again in disguise and with altered voice, appeared on a special
presentation of Nightline, a nationally popular ABC nightly news
program, and she again criticized SCU's treatment of minorities.
On April 19, 1999, two months later, Walton testified before
the New York City Council. Again in disguise, she whispered her
comments to Adams and Leader, who relayed them to City Council
members. Her testimony followed the testimony of Commissioner
Safir. After testifying, Walton contacted her command, intending
to request to be excused for the remainder of the day. Instead,
the sergeant on duty informed her that she was dismissed from
the Police Department, effective as of 4:00 p.m.
Plaintiff claims that, notwithstanding her appearances in
disguise, her identity was known and of interest to Commissioner
Safir and his executive staff. She further maintains that her
dismissal by Commissioner Safir was in retaliation for
exercising her constitutional right to free speech. Defendants
deny any intention to retaliate, and further deny that they were
even aware of or concerned with the fact that plaintiff was the
disguised individual who expressed criticisms of the SCU. In
defense of their actions, defendants claim that plaintiff was
dismissed because of violations of Police Department regulations
concerning sick leave during a term of probationary status.
Defendants maintain that plaintiff, as a result of these
violations, was properly terminated. I will discuss the
applicable standards and the policies and practices relating to
the respective contentions of the parties later in this opinion.
At this point, a fuller development of plaintiffs career as a
police officer will aid in understanding the claims and
Plaintiff Yvette Walton joined the New York City Police
Department on July 28, 1987, following her graduation from the
Police Academy. In April 1993, based on her record of six-years
of service as a police officer, she was recruited to join the
SCU. During two years of street patrols with that elite unit,
from April 1993 to March 1995, she earned 18 commendations for
excellent police duty.
Plaintiff subsequently requested a transfer from the SCU. Her
transfer resulted in reassignment to the 28th Precinct in the
Bronx. She testified that she had requested transfer because she
had become uncomfortable with what she perceived were improper
SCU tactics that impacted adversely on minority — in particular
African American — communities. From Walton's personnel record,
it appears that the quality of her performance then diminished
and the number of her absences and sick leaves increased.
On August 11, 1997, an incident occurred involving plaintiff
commanding officer, Deputy Inspector Joyce Stephen, which led to
charges and specifications being presented against her. It
appears from the record that plaintiff had been assigned to desk
duty and was receiving a complaint over the telephone from an
aggrieved person in the community, when Stephen ordered
plaintiff to report to her immediately. Plaintiff asked Stephen
to wait until the complainant completed her statement. Stephen,
however, insisted on immediate compliance, to which plaintiff
reacted with intemperate remarks and expletives. Deputy
Inspector Stephen preferred charges and specifications and,
after an administrative trial, plaintiff was found guilty. This
finding of guilt resulted in plaintiff being placed on dismissal
probation on July 3, 1998.*fn3
In October 1998, plaintiff was transferred to Bronx Central
Booking, a unit responsible for the custody and movement of
detainees incident to their arraignments and bail applications.
Once again, under a new commander, she received consistently
positive evaluations of her work. She was also twice injured in
the line of duty while coming to the aid of fellow officers. In
the first incident, on September 28, 1998, a burly prisoner,
resisting being restrained in his cell, hit her with a
head-butt, causing plaintiff to suffer a concussion that kept
her out of work and on sick-leave absence for approximately a
week. In the second incident, a kick by a prisoner to Walton's
right thumb injured the tendons in her hand, requiring an
operation that surgically severed and repaired her injured
tendons. This incident resulted in sick-leave absence in October
and November of the same year.
Police regulations provide that an officer on sick leave comes
under the jurisdiction of the NYPD Medical Unit. Further, the
injured officer remains confined to her residence except for
authorized absences, such as visits to doctors. The record
reflects that on October 7, 1998, plaintiff was granted
permission to leave her residence at 1200 hours to visit her
doctor, with instructions to return by 1600 hours, but that she
did not return to her home until 2100 hours.
Plaintiff allegedly also failed to respond timely to "green
cards" left at her residence on October 14, 20 and 21, 1998.
Green cards reflect official requests by a Medical Division
officer who, on those dates during her sick leave, visited her
home to check on her presence. Not finding her at home, the
officer left the green cards as an order for her to call the
Medical Division desk sergeant when she returned. Walton was
alleged to have responded late by 37, 25 and 35 minutes,
respectively. Further, she is alleged to have failed to sign an
attendance log at a Bronx health care facility on October 21st
when she visited for after-care surgical treatment of the
repaired tendons in her right hand.
These infractions gave rise to two sets of disciplinary
proceedings. Plaintiffs lateness in responding to the green
cards that were left at her home and her neglect to sign out of
the district surgeon's office — the October 14, 20 and 21
infractions — became the subject of one set of charges which
were investigated by Sergeant Nanette Fernau of the Medical
Division. Plaintiffs delay in returning to her home on October
7th after her visit to her doctor became the subject of a second
charge investigated by Sergeant Dennis Beazer of the Medical
Division. On November 19, 1998, Sergeants Fernau and Beazer
presented their charges to Walton and her assigned Police
Benevolent Association union representative. Thereafter,
according to practice, if the investigating officers believe
that a sanction may be appropriate, they are to decide whether
to remit the charge to the officer's commander to consider
administering a "command discipline," a minor punishment that
can affect accumulated leave time or, alternatively, to
the Department Advocate's Office to consider drafting formal
charges and specifications for an administrative trial which
could result in more serious punishments, including suspension
and dismissal from the Police Department.
On November 24, 1998, five days later, Fernau and Beazer met
with Lieutenant Anthony Barlanti, a lawyer in the Department
Advocate's Office, to discuss an appropriate course of action.
Fernau, following Lieutenant Barlanti's recommendation, referred
her file to Captain Littlejohn, Walton's commanding officer, for
consideration of a command discipline.*fn4 Beazer's file,
however, remained with Beazer.
On January 12, 1999, Captain Littlejohn met with Walton to
administer the intended command discipline. However, Walton's
union representative was not present to represent her, and
Littlejohn was therefore unable to proceed. He informed Walton
that he was thinking of ordering a day's loss of vacation time
as the extent of punishment, and postponed their meeting until
February 23, 1999, when Walton was scheduled to return from
On February 14, 1999, Walton appeared at the "100 Blacks"
press conference in disguise. On February 17, 1999, three days
later, Barlanti, apparently learning that Sergeant Beazer had
not remitted her file to Captain Littlejohn along with Sergeant
Fernau's investigative file, called the Medical Division to
request Walton's "investigative package." Barlanti asked for a
"49," Police Department jargon for a memorandum to recommend
charges and specifications against Walton. See Tr. at p. 542,
Ex. E. Barlanti reported his action to Deputy Inspector Patrick
Bradley, presumably in response to Bradley's instruction, and
was ordered to "monitor" the case and to keep him "apprised."
Tr. at p. 543, Ex. E. Asked to explain, Barlanti testified that
Inspector Bradley was interested "in all the cases," to "keep
them moving." Tr. at p. 543.
Barlanti received Beazer's file the very next day, February
18, and brought it to his superior, Captain Heatherington, the
executive officer of the Department Advocate's office. The file
shows Captain Heatherington's note: "leave consult open, obtain
necessary info ASAP, confer, refer to EMD." EMD, or the Employee
Management Division, is the section of the Police Department
that processes dismissals of police officers.
On February 23, upon Walton's return from vacation, she met
with Littlejohn as scheduled to receive her command discipline.
Again, the union representative was absent and the matter was
postponed. The next day, with the delegate present, Littlejohn
expressed uncertainty as to his ability to proceed. After a
telephone call, he told Walton that he had to wait for
instructions, and recessed their meeting. On the following day,
February 25, 1999, Captain Littlejohn informed plaintiff that
the command discipline was to be changed to charges and
Littlejohn's telephone call appears to have been with
Barlanti. Barlanti, following Bradley's instructions, had
removed Fernau's command discipline from Littlejohn in order to
"roll" it into the charges and specifications he intended to
prepare on Beazer's investigation. On March 7 or 8, Barlanti
received Fernau's investigative report and, on March 18,
forwarded the charges and specifications he drafted with respect
to both the Fernau and Beazer investigations to Assistant
Commissioner Kevin Lubin, Chief of the Department Advocate's
Office, and requested "official guidance." Lubin forwarded the
materials to EMD. Endorsements recommending dismissal were added
by Chief of Personnel Michael Markman and First Deputy Police
Commissioner Patrick Kelleher. On April 12, 1999, Commissioner
Safir endorsed his approval. On that same day, the New York City
Council was scheduled
to conduct hearings concerning the tactics used by the SCU, but
the session was postponed one week. On April 19, 1999, the day
Walton testified, immediately following her testimony, Walton
was informed that she had been dismissed as a police officer,
effective that afternoon.
The Police Department dismissed Walton without a hearing or a
trial. Police Commissioner Safir testified that Walton could be
dismissed without a hearing or a trial because she was in a
status of dismissal probation when she committed her infraction.
He testified that her record of good performance ratings in
Bronx Central Booking was irrelevant, and it was also irrelevant
that her sick leave involved, not malingering, but
post-operative care following her surgery to repair a
line-of-duty injury. As Commissioner Safir testified, Walton's
status of dismissal probation gave him cause to dismiss her
based on only the charge of an additional infraction, without
having to consider any other aspect of her record. As to why
action was taken months after the infraction had occurred,
Commissioner Safir testified that the delay was normal.
The New York City Administrative Code and the Police
Department's implementing regulations do not mention a status of
"dismissal probation." Defendants testified that the practice is
nevertheless standard in the New York City Police Department.
However, no policy directive or other writing reflects such a
status; none was produced and none could be found.
Section 14-115(d) of the Administrative Code of the City of
New York, cited by defense counsel, authorizes the Police
Commissioner to suspend a judgment of discipline against a
member of the police force, to place the member on probation for
up to a year, and to impose punishment at any time during that
probationary period.*fn5 Dismissal of a probationary officer,
however, is a "remedy of last resort," even during a period of
probation. N.Y.C. Admin. Code § 434a-14.0; N.Y.P.D. Admin. Guide
§ 318-9. Before an officer is to be dismissed, the officer's
performance during probation is to be reviewed, and "guidance"
is to be given to that officer. Id. Section 434a-14.0
Although a penalty of dismissal may be imposed for
violation of the terms of probation, it is a remedy
of last resort. Before such penalty is assessed, the
member's probationary performance will be reviewed to
determine his attitude and willingness to comply with
the terms of probation and whether guidance received
was structured to deal with his particular problem.
Thus, dismissal is not to follow automatically from an
infraction committed during probation. The lesser punishment of
a command discipline remains an appropriate sanction and is "not
Imposition of Command Discipline during probationary
periods is not discouraged and will not necessarily
be viewed as a violation of the terms of probation.
A member of the police force has the right not to be dismissed
except after written charges have been "examined, heard and
investigated" by the commissioner or deputy commissioner, upon
"reasonable notice to the member," pursuant to "rules and
regulations, from time to time prescribe[d]" by the
commissioner.*fn6 N.Y.C. Admin. Code § 14-115(b).
Commissioner Safir testified that these protections apply to
"disciplinary probation," not "dismissal probation;" the
difference, he said, was like "apples and oranges."*fn7 In
contrast, Lieutenant Barlanti testified that the terms
"disciplinary probation" and "dismissal probation" are used
interchangeably by the Department Advocate's Office.*fn8
Thus, Patrol Guide 118-05 (Ex. GG) provides:
[if] charges are preferred against a member who has
been placed on disciplinary/dismissal probation, the
specifications will be prefaced with the words,
"While on disciplinary/dismissal probation."
Barlanti testified that he was familiar with regulations
concerning disciplinary probation, but did not know of any
regulation concerning dismissal probation. Commissioner Safir,
explaining the absence of any distinguishing regulation or
policy directive, testified that the regulations providing for
disciplinary probation reflected the policy of earlier
commissioners, not his, and that he disapproved of the
regulations. Commissioner Safir testified:
Dismissal probation is where you are de facto
dismissed from the Department but you are given
another chance to show that you intend to comply with
the rules and regulations of the Department. I had no
part in putting disciplinary probation into the
administrative guide. Had I been commissioner at the
time, I never would have approved it.*fn9
The procedures followed by defendants in dismissing Walton
were not consistent with the City's Administrative regulations
and the Police Department's written directives.
I. First Amendment Criteria: Standards and Burden of Proof
Government employees, like all others, have a First Amendment
right to speak and may engage in public criticism of the
agencies for which they work. Connick v. Myers, 461 U.S. 138,
140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), citing Picker ing
v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d
811 (1968). Indeed, public employees "are often in the best
position to know what ails the agencies for which they work
[and] public debate may gain much from their informed
opinion. . . ." Waters v. Churchill, 511 U.S. 661, 674, 114
S.Ct. 1878, 128 L.Ed.2d 686 (1994); see also Rankin v.
McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315
Defendants agree that the disguised speaker at the February
14th press conference is entitled to constitutional protection.
Defendants claim that they were unaware of the identity of the
speaker and that plaintiffs employment was terminated not
because she was believed to be the
speaker, but because of independent reasons — her disciplinary
infractions while on dismissal probation.
An issue of fact is thus presented. I must, therefore,
evaluate the proofs in relation to the parties' respective
burdens of proof.
In Mount Healthy City Sch. Dist. Bd. of Ed. v. Doyle,
429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), Fred Doyle, an
untenured teacher, charged that the Mount Healthy School
District refused to renew his contract because he had expressed
his criticism of a recently instituted dress code on a local
radio station. The School District claimed that Doyle's contract
was not renewed because of his history of unsatisfactory and
untactful conduct, and that the incident with the radio station
reflected his indifference to good school relationships. The
district court found for the plaintiff, holding that the School
District's decision not to renew, since it was based at least in
part on his speech, infringed on his First Amendment rights. The
court of appeals affirmed, but the Supreme Court reversed. The
Supreme Court held that there were two burdens of proof to
evaluate: the plaintiffs burden to show that his
constitutionally protected conduct "was a `motivating factor' in
the Board's decision not to rehire him;" and the School
District's burden to show "by a preponderance of the evidence
that it would have reached the same decision as to [plaintiff's]
reemployment even in the absence of the protected conduct."
Id. at 287, 97 S.Ct. 568.
The Supreme Court elaborated: an employee gains no better
standing merely because he engages in constitutionally protected
conduct. If an employer shows, and it is the employer's burden
to show, that it would not have hired the employee anyway, the
employer's decision will be upheld:
A borderline or marginal candidate should not have
the employment question resolved against him because
of constitutionally protected conduct. But that same
candidate ought not to be able, by engaging in such
conduct, to prevent his employer from assessing his
performance record and reaching a decision not to
rehire on the basis of that record, simply because
the protected conduct makes the employer more certain
of the correctness of its decision.
Id. Since the record did not make clear if the lower court
had properly evaluated the proofs in relation to the differing
burden of proof, the Supreme Court remanded the case.
Thus, Walton, the plaintiff in the case before me, has the
initial burden to show that "a causal connection exists between
[her] speech and the adverse determination against [her], so
that it can be said that [her] speech was a motivating factor in
the determination [by Commissioner Safir to terminate her
employment]." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.
1999). Although her probationary status does not diminish her
right, see Rankin v. McPherson, 483 U.S. 378, 383-84, 107
S.Ct. 2891, 97 L.Ed.2d 315 (1987), neither does it elevate her
right, for a defendant is allowed then to demonstrate by a
preponderance of the evidence that "it would have reached the
same decision even in the absence of the protected conduct."
Mount Healthy, 429 U.S. at 287, 97 S.Ct. 568.
The burden of proof analysis of Mount Healthy was applied in
a recent Second Circuit decision, Greenwich Citizens Comm.,
Inc. v. Counties of Warren and Washington Indus. Dev. Agency,
77 F.3d 26 (2d Cir. 1996). The issue in that case was whether
counterclaims filed by a public authority against a taxpayers'
group, seeking damages against the taxpayers' group for the
consequences flowing from their earlier lawsuit, violated the
taxpayers' constitutional rights of free speech and petition.
The jury found that the public authority had caused a chilling
of First Amendment rights, and the district court upheld the
verdict. The Court of Appeals reversed, holding that the jury
been instructed to evaluate the evidence according to the
shifting burden, from plaintiff to defendant. First, the
plaintiff must show a retaliatory intention to deter the
exercise of First Amendment rights.
[The citizens groups] are . . . required to persuade
the jury that the counterclaims were filed, not as a
legitimate response to litigation, but as a form of
retaliation, with the purpose of deterring the
exercise of First Amendment freedoms.
Id. at 31. If the citizens groups are successful, the Court of
Appeals continued, the public authorities can still avoid
liability if they persuade the jury that they would have filed
the counterclaims in any event.
if the [citizens groups] are successful in persuading
a jury that [the public authorities] were prompted to
file their counterclaims with retaliatory intent,
[the public authorities] would still be entitled to
avoid liability if they could persuade the jury that
they would have filed the counterclaims even in the
absence of the impermissible reason.
Id. (citations omitted).
Retaliatory motive is rarely proven by direct evidence.
Housing Works, Inc. v. City of New York, 72 F. Supp.2d 402, 422
(S.D.N.Y. 1999), appeal dismissed, 203 F.3d 176 (2d Cir.
2000). A temporal relationship between protected activity and an
adverse employment condition can be significant.
Circumstantial evidence of retaliation may be found
when defendants are aware that plaintiff has engaged
in protected speech and defendants' challenged
behavior closely follows that protected speech.
Id. at 422 — 23; McCullough v. Wyandanch Union Free Sch.
Dist., 187 F.3d 272
, 280 n. 2 (2d Cir. 1999) (dictum). But
whether circumstantial or direct, "[t]he causal connection must
be sufficient to warrant the inference that the protected speech
was a substantial motivating factor in the adverse employment
action, that is to say, the adverse employment action would not
have been taken absent the employee's protected speech." Morris
v. Lindau, 196 F.3d 102
, 110 (2d Cir. 1999). Plaintiff has the
burden to prove such retaliation by "tangible proof." Id. at
111. Once plaintiff does so, the burden shifts to the employer
to show its legitimate reason then and there to dismiss the
employee. Sagendorf — Teal v. County of Rensselaer,
100 F.3d 270, 275 (2d Cir. 1996). The employer must show that it had a
legitimate reason to discharge the employee on the day of the
employee's actual dismissal; if "circumstances would not have
motivated a discharge on that day, but only at some later time,"
an impermissible firing because of the plaintiffs having engaged
in protected activity may be found. Id. As the Supreme Court
An employer may not, in other words, prevail . . . by
offering a legitimate and sufficient reason for its
decision if that reason did not motivate it at the
time of the decision.
Price Waterhouse v. Hopkins, 490 U.S. 228
, 252, 109 S.Ct.
1775, 104 L.Ed.2d 268 (1989) (plurality opinion).
The issue in the case before me is whether the City of New
York, through former Commissioner Safir, terminated Walton's
employment because she exercised her right under the First
Amendment to criticize the Police Department's Street Crime Unit
for racially discriminatory policies. Plaintiff has the initial
burden to show that Commissioner Safir's executive staff knew
that it was plaintiff who appeared as spokesperson for the 100
Blacks organization at the February 14, 1999 press conference
and, after that, on television and before the City Council, and
that Commissioner Safir's dismissal of the plaintiff was
retaliatory. It is the City's burden to prove that the reason it
assigned for terminating Walton, because of her slowness in
returning to her home after the visits to her doctor and in not
promptly reporting her whereabouts during that interval to the
medical unit, was, in fact, the reason that it terminated Walton
on April 19, 1999, directly following her testimony to the City
Council. In other words, as the Court of Appeals in Greenwich
Citizens put it, was the defendant's response "prompted by a
legitimate reason, not an impermissible reason." Id. at 33.
II. Personal and Official Liability
Plaintiff brought and tried this suit against the City of New
York and Howard Safir in his official capacity as Commissioner
of the New York City Police Department. Compl. ¶¶ 9, 10.
Plaintiff claims that defendant Safir, under "color" of the
statutes, ordinances, regulations, customs or usages applicable
to him as Police Commissioner, deprived the plaintiff of her
rights, privileges, or immunities secured by the Constitution
and laws of the United States, 42 U.S.C. § 1983, and that the
city is therefore liable for Safir's wrongs.*fn10
A. Plaintiff's Motion to Amend to Sue Defendant Safir
Since the trial, Commissioner Safir resigned his office as
Police Commissioner, and plaintiff moved to amend her complaint
to allege claims against him personally. She contended that she
was asking merely that the pleadings be conformed to the proofs.
See Fed.R.Civ.Proc. 15(b). Her contention is without merit
and her motion is denied.
Plaintiff pursued her claim against defendant Safir "in his
official capacity." Compl. ¶ 9. The proofs at trial did not
focus on whether Safir had any personal motivation in connection
with the employment, investigative and bureaucratic actions
taken against plaintiff. See Geller v. Staten Island
Developmental Center, 1991 WL 99054, at *8 (N.D.N.Y. 1991). Nor
did Safir have incentive to develop defenses available to him
personally, such as asserting immunity for having objectively
and reasonably relied on existing law. See Goldberg v. Town of
Rocky Hill, 973 F.2d 70, 73 (2d Cir. 1992). Nor did defendants
have the incentive to retain personal counsel interested in
developing personal defenses. See Tiffany v. Village of
Briarcliff Manor, 216 F.3d 1073 (Table), Unpublished
Disposition, 2000 WL 900206 (2nd Cir. 2000).*fn11 See
generally Kentucky v. Graham, 473 U.S. 159, 168 n. 14, 105
S.Ct. 3099, 87 L.Ed.2d 114 (1985). Plaintiff's motion to amend
would subject defendants to substantial prejudice and, on the
law and in the exercise of my discretion, I deny the motion.
See, e.g., Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
B. Defendants' Suggestion of Resignation and Succession
Defendants have filed a Suggestion, pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, of Commissioner Bernard
Kerik's succession as Commissioner of the New York City Police
Department. However, it is not necessary to substitute
Commissioner Kerik as a defendant. Plaintiffs action does not
the City of New York, which remains a defendant, can respond to
any finding of official liability. Kentucky v. Graham,
473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Geller,
1991 WL 99054, at *8. Section 1983 actions brought against
government officials in their official capacities "generally
represent only another way of pleading an action against an
entity of which an officer is an agent." Kentucky v. Graham,
473 at 167 n. 13, 105 S.Ct. 3099. Since local governments can be
sued directly in section 1983 cases, there is no need to bring
official-capacity suits against local government officials.
Geller, 1991 WL 99054, at *8. Accordingly, defendant's motion
to substitute the current Police Commissioner pursuant to
Rule 25(d) is denied.*fn12
C. Municipal Liability
Municipalities may be held liable for depriving individuals of
their constitutional "rights, privileges, or immunities," if the
deprivation proximately results from "a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by [the municipality's] officers" explicitly or by
the municipality's custom and practice. Monell v. New York City
Dep't of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978). Although municipal liability cannot
attach merely because of respondeat superior, the act of an
official with final decision-making authority, if it wrongfully
causes the plaintiffs constitutional injury, may be treated as
the official act of the municipality, resulting in Section 1983
liability of the municipality. City of St. Louis v.
Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107
(1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83,
106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); White-Ruiz v. City of
New York, 983 F. Supp. 365, 380 (S.D.N.Y. 1997) (holding City
liable for unwritten Police Department policy to retaliate
against officers who exposed police corruption).
State law determines whether and in what circumstances an
official possesses final policy-making authority. Pembaur, 475
U.S. at 483, 106 S.Ct. 1292. Commissioner Safir testified that
only he, as Police Commissioner, had the authority to dismiss a
New York City Police Officer. His authority stems from section
434 of the New York City Charter, which provides that the Police
Commissioner is to have
cognizance and control of the government,
administration, disposition and discipline of the
department, and of the police force of the department
[ . . . and that the] Commissioner shall be the chief
executive . . . chargeable with and responsible for
the execution of all laws and the rules and
regulations of the department.
See Domenech v. City of New York, 919 F. Supp. 702, 710 n. 1
(S.D.N.Y. 1996). Although the New York City Charter also vests
"general authority to make final City policy" in the Mayor and
City Council, see N.Y.C. Charter at §§ 3, 8(a), 21 and 28, and
decision-making authority for personnel management in the
Commissioner of the Department of Citywide Administrative
Services ("DCAS"), see id. at §§ 811, 814(c), these general
provisions do not diminish the specific and authoritative
responsibility of the Police Commissioner as "chief executive"
of the Police Department, with "cognizance and control of the
government, administration, disposition and discipline of the
department," to terminate the employment of a police officer.
Id. at §§ 1129, 434. And it is the actuality of the Police
Commissioner's power and authority, not theoretical questions,
determine whether an official's action is an official, municipal
act, or merely the private, individual act of that official.
See McMillian v. Monroe County, 520 U.S. 781, 786, 117 S.Ct.
1734, 138 L.Ed.2d 1 (1997); Praprotnik, 485 U.S. at 126, 108
S.Ct. 915; Rookard v. Health & Hosps. Corp., 710 F.2d 41
(2d Cir. 1983); Domenech v. City of New York, 919 F. Supp. 702,
710 n. 1 (S.D.N.Y. 1996); Eng v. New York City Police Dep't et
al., 1996 WL 521421, at *7 (S.D.N.Y. Sept. 12, 1996) (municipal
liability based on decisions by police commissioner to terminate
or transfer officers).*fn13
In the case before me, the decision to terminate plaintiff
Walton's employment as a New York City police officer was made
at the highest level of the Department, by Police Commissioner
Safir and Deputy Commissioners working directly under him. The
action constitutes official action, whether regarded as a
termination for disciplinary purposes during probation as
defendant claims, or as a termination reflecting retaliatory
action for plaintiffs public criticisms as plaintiff claims.
There is no allegation or proof that the dismissal of Walton was
III. Plaintiffs Disguised Identity and the New York Police
Department's Knowledge and Interest
Plaintiff participated in disguise at the February 14, 2000
press conference called by "100 Blacks in Law Enforcement," but
I find that her disguise did not succeed in shielding her
identity from those who had an interest to know who she was.
Clearly the individual speaking was a woman, as indicated by her
voice and her stockings. The alteration of her voice on the
television clips did not disguise her gender, for an announcer
referred to her as a woman, and viewers could see her stockings.
The individual was introduced as a former member of the Street
Crime Unit, and since she was one of only three African-American
women who had been assigned to the Street Crime Unit during her
period of service and the only African-American woman actually
on patrol duty, it could not have been difficult for the
Department to ascertain the identity of the police officer who
was using her own experience to charge the SCU with
discriminatory behavior. And, clearly, the Department's
Intelligence Division knew about the 100 Black's February 14th
conference, for it was advised as to its time and place and the
topic to be addressed.
The 100 Blacks organization itself, and Eric Adams its
co-founder and leader, were being investigated at the time by
the Police Department's Internal Affairs Bureau ("IAB"). The
investigation included covert surveillance of Adams, monitoring
of his incoming and outgoing telephone calls, and monitoring of
100 Blacks' public events. The investigation was not limited by
any specific administrative or judicial warrant or other
authorization, and there was no requirement to account for that
which was learned or intercepted.*fn14
I find that the Police Department knew that it was Walton who
was the spokesperson of 100 Blacks criticizing the SCU for
employing discriminatory policies that led to the killing of
Amadou Diallo. The Police Department knew of Walton's role from
their monitoring of 100 Blacks' activities, from their
monitoring of incoming and outgoing calls to and from the 100
Blacks' telephone, and from the ease with which Walton was
identifiable behind her disguise.*fn15 The Department also
knew that a female member formerly with the SCU, presumably the
same female spokesperson, was to testify at the City Council
hearing concerning the SCU scheduled for April 12, 2000, and
that she was the person who testified at the adjourned City
Council meeting held April 19, 1999. On April 12, 1999,
Commissioner Safir endorsed Walton's file approving that she
should be dismissed and, on April 19, 2000, Commissioner Safir's
order dismissing Walton from the New York City Police Department
Thus, I find that the Police Department knew that it was
plaintiff who criticized police behavior as the spokesperson for
100 Blacks in Law Enforcement at its February 14, 1999 press
conference, and that the Police Department's denial of this
knowledge is not credible. The remaining question is whether
defendant terminated plaintiff because she returned late from
the doctor to her home during her sick leave while on dismissal
probation, or whether defendant terminated her in retaliation
for having publicly charged the Police Department's Street Crime
Unit with racially discriminatory conduct leading to the killing
of Amadou Diallo.
A. Plaintiff's Termination: Retaliation or Permissible
Yvette Walton was an effective police officer. She had been
recruited to join an elite group of officers who formed the
Street Crime Unit in its early years — one of only three
African-American women in the Unit, and the only one performing
actual street patrols. Her work earned her 18 commendations in
two years. After experiencing difficulty with her commanding
officer following her transfer from the SCU, she again performed
in superior fashion as an officer in Bronx Central Booking,
earning consistently high ratings. Her readiness to perform her
duties in aid of other officers at the risk of personal safety
caused successive injuries to her head and to the tendons in her
hand, requiring sick leave and surgery.
The New York Police Department has had a strong policy to
recruit African-American officers.*fn16 Yet, notwithstanding
its policy, it dismissed Walton, an experienced and able 12-year
veteran summarily, without a hearing, and inconsistently with
applicable regulations and its own practices.
Defendants insist that this dismissal was not related to
criticism of the Street Crime Unit for having engaged in
racially discriminatory conduct that led to the death of Amadou
Diallo, and that her appearances for 100 Blacks in Law
Enforcement were of no interest to the Department. I find,
however, upon the facts and weighing the credibility of the
witnesses, that Walton's infractions in overstaying doctor
visits before returning to her home were regarded by the
Department as minor infractions of the type that would normally
have led to command disciplines, not dismissal, even of an
officer in probationary status. Defendants failed in their
burden to show that Walton normally would have been dismissed
for her tardiness in returning home promptly after her doctor
visits, and that the regulatory provision favoring command
disciplines even in probationary status would not have applied
to her. See Mount Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977);
Greenwich Citizens' Comm., Inc. v. Counties of Warren and
Washington Indus. Dev. Agency, 77 F.3d 26, 33 (2d Cir. 1996). I
hold, therefore, that Walton's probationary status was pretext
for her dismissal and that she would not have been dismissed had
she not spoken out publicly on behalf of "100 Blacks in Law
Enforcement" on an issue of immediate and substantial concern to
Walton's absence from home in connection with visits to her
doctors for post-surgical treatment were considered minor
infractions by Sergeant Fernau, the investigating officer on
most of the charges, and Captain Littlejohn, Walton's commanding
officer. Sergeant Fernau recommended a Schedule A Command
Discipline, the most lenient of the intra-command disciplinary
punishments, and Captain Littlejohn told Walton that a day's
loss of vacation time would probably be the punishment he would
order. If the union representative provided for police officers
at such meetings had been present when Captain Littlejohn met
with Walton in January 1999, the infractions investigated by
Fernau would have been resolved and, with them, Beazer's related
charge as well. I find, based on the credible evidence, that
nothing further would have been done to punish Walton.
All this changed following the "100 Blacks" press conference
of February 14, 1999. I find that Lieutenant Barlanti, whom both
Fernau and Beazer had consulted in November, had been content to
allow Fernau's command discipline to proceed knowing that it
would have resolved the entire controversy. Suddenly, however,
Barlanti began to move, prodded by the order of a Deputy
Inspector of the Department on February 17th to monitor his
cases, and by his commanding officer's instruction on February
18th to obtain relevant information about Walton "ASAP," and to
refer the matter to the Employee Management Division, the
division charged with recommending dismissals of police officers
to the Commissioner. Barlanti, in order to implement his
commander's instructions, began to prepare charges and
specifications on Sergeant Beazer's file and, instead of
allowing that file to be "rolled up" into the command discipline
that Captain Littlejohn intended to administer, flipped the
"roll up" and ordered Littlejohn to cede jurisdiction to him.
Barlanti thus caused the lesser charge to swallow the greater
charge — in effect, the shoehorn swallowed the shoe.
Dismissal for violation of the terms of probation is a "remedy
of last resort." See N.Y.C. Admin. Code, § 434a-14.0; N.Y.P.D.
Admin. Guide, § 318-9. Command Disciplines are appropriate
impositions even during probationary periods; such impositions
are "not discouraged . . . and will not necessarily be viewed as
a violation of the terms of probation." Id. Until he was
directed otherwise immediately following Walton's February 14th
press conference for "100 Blacks in Law Enforcement," Barlanti's
actions convincingly demonstrate that a command discipline was
the appropriate procedure for
Walton's infractions. Indeed, Barlanti testified that he doubted
that he could prove the essential elements of the case against
her to cause her dismissal.
Barlanti's hesitation disappeared when he was instructed to
move his case following the February 14th press conference.
Commissioner Safir testified that the regulations governing
disciplinary probations did not apply to Walton because she was
on "dismissal probation," and thus she could be dismissed at any
time, summarily, for any infraction during her year of
probation. Without checking on Walton's performance as a police
officer, or considering the context of her infractions — that
she was on sick leave not because of any issue of malingering
but because of surgery to repair an injury incurred in the line
of duty — and without a trial or a hearing on the charges and
specifications that Barlanti was ordered to draft, Safir and his
Deputy Commissioners ordered Walton dismissed from the
I do not function as an Article 78 court, reviewing actions of
a state or municipal officer for arbitrariness. See N.Y.
C.P.L.R., Art. 78. Arbitrariness and irregularity, however, may
also constitute strong proof of other, more secret and
potentially improper motivations. The Police Commissioner, by
avoiding the cleansing light of an administrative trial, and by
acting contrary to the City Charter and Police Department
regulations regarding police officer in probationary status,
removed Walton's case from the jurisdiction of her commanding
officer, and, without hearing or trial or consideration of her
overall performance, dismissed Walton as a Police officer. I
find that Walton's dismissal was in retaliation for the exercise
of her First Amendment rights.
The parties agreed that issues of damages and possible other
remedies would be deferred to follow any finding of liability.
The parties shall therefore appear for a conference on December
15, 2000, at 10:30 a.m., to discuss such further steps as might
be appropriate to lead to an entry of final judgment in this