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November 27, 2000


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


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 seizure operations.

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 defenses.

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.

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 vacation.

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 specifications.

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.

Dismissal Probation

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, ...

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