United States District Court, Southern District of New York
December 4, 2002
RITA FLEMING, PLAINTIFF,
THE CITY OF NEW YORK, A MUNICIPAL ENTITY, NEW YORK CITY POLICE COMMISSIONER, HOWARD SAFIR, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY, NEW YORK CITY POLICE COMMISSIONER BERNARD KERIK, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY, MICHAEL MARKMAN, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY, NEW YORK CITY POLICE INSPECTOR ANTHONY IZZO, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY, DEFENDANTS.
The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge.
OPINION AND ORDER
Before this Court is a motion by plaintiff Rita Fleming ("Fleming")
seeking to compel production by defendants of certain document requests.
For the following reasons, Fleming's motion to compel is DENIED IN PART,
GRANTED IN PART and WITHDRAWN IN PART.
Fleming began her employment with the New York City Police Department
("NYPD") on July 1, 1998, and from that time until February 19, 1999,
Fleming was assigned to the police academy. See Amended Complaint at
¶¶ 19, 21. Thereafter, she was assigned to the 75th Precinct as a
probationary officer. Id. at ¶ 21. On December 27, 1999, while
off-duty, Fleming was in Stamford, Connecticut at the Metro North train
station waiting to catch a train to New York City. Id. at ¶ 22. While
waiting, Fleming was stopped and detained by Stamford police. Id. Fleming
showed her NYPD badge, but was asked to accompany the officers to a
police room in the station. See Plaintiff Rita Fleming's Memorandum of Law
in Support of Plaintiff's Motion to Compel Discovery ("Pl. Mem.") at
1-2. Fleming expressed the belief that she was being unlawfully detained
and racially profiled. Id. She also threatened to sue the Stamford Police
Department. Id. at 2. While detained, Fleming contacted her command and
advised the supervising officer of her situation. Id. The sergeant at the
75th Precinct confirmed Fleming's identity to the Stamford police. Id.
However, a sergeant at the Stamford police department called the Internal
Affairs Division of the NYPD alleging that Fleming had interfered with a
robbery investigation and "mouthed off." Id.
The Brooklyn North Investigations Unit ("BNIU") conducted an
investigation into the events in Stamford. See Amended Complaint at
¶ 31. At an administrative hearing, Fleming explained that she reacted
the way she did because she felt she was being racially profiled. Id.
Although the BNIU found Fleming had not interfered with an investigation
and had identified herself properly as a police officer, they also found
that Fleming was discourteous and recommended that she be disciplined.
See Pl. Mem. at 2. Fleming was terminated as a result of the BNIU report
on September 5, 2000. See Amended Complaint at ¶ 20.
A. Temporal Scope of Discovery
The defendants have already produced discovery responsive to Fleming's
interrogatory number 5 and document requests numbers 10 and 11. However,
Fleming has brought this motion to dispute the temporal scope of
discovery. Fleming has requested that documents produced by the
defendants cover the years 1996-2000. Defendants have countered that they
should only produce documents for the years Fleming actually worked for
the NYPD, 1998-2000. In order to support her request for discovery
covering five years, Fleming mistakenly relies on Lowe v. Commack Union
Free School District, 886 F.2d 1364 (1989). In Lowe, the Second Circuit
rejected a disparate impact claim in an age discrimination case because,
among other things, the comparative year periods were too small. See
Lowe, 886 F.2d at 1372. However, in Lowe, the plaintiff only sought to
introduce evidence from one year. Id. In this case, Fleming has been
given information for three years, which this Court deems is more than
enough time to prove her point. Further, the Court in Lowe found that the
"trial court is in the best position to analyze the statistics offered in
a case such as this one." Id. at 1374. While this Court does not dispute
Fleming's contention that statistics can be used in cases to prove a
pattern or practice of discrimination, the Court finds that the
information provided by the defendants is sufficient.
B. Remaining Discovery Issues
In interrogatory number 6, Fleming asks that the defendants "identify
each and every police officer who has filed a complaint against the New
York City Police Department for discrimination based upon race for 1996
until present.)" This Court finds this discovery request to be
overbroad. Document request number 12 seeks the production of a study
conducted by the NYPD and reported in the New York Times, acknowledging
that minority officers were more likely than white officers to face
punishment for disciplinary infractions. Although this report covers the
years 1988-1996, because the large majority of the decision makers
relevant to that report are also relevant to this case, this Court deems
the document relevant, and thus the defendants shall produce this
forthwith. The defendants are also in the process of producing responses
to document requests 13 and 14. Finally, document requests numbers 8 and
17, and interrogatories numbers 4 and 7 have been withdrawn.
For the foregoing reasons, Fleming's motion is DENIED IN PART, GRANTED IN
PART and WITHDRAWN IN PART.
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