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BARRY v. NEW YORK CITY POLICE DEPARTMENT

April 6, 2004.

EILEEN BARRY, -against- Plaintiff, NEW YORK CITY POLICE DEPARTMENT, HOWARD SAFIR as Commissioner of the New York City Police Department, CHIEF CHARLES CAMPISI, CAPTAIN GARY REISS, CHIEF JOSEPH FOX CAPTAIN ROBERT MULLANE, and SERGEANT ANTHONY PETRO Defendants


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

OPINION

Plaintiff Eileen Barry, a sergeant in the New York City Police Department, charges the Department and several of its officers with retaliating against her in violation of her First Amendment rights. She claims mat after exposing police misconduct within a unit to which she had newly been appointed supervisor, defendants first asked her to accept responsibility for the unit's problems to protect previous supervisors who had since been promoted within the Department. When she refused, she claims that defendants retaliated against her by, inter alia, stripping plaintiff of her supervisory responsibilities, transferring her to lesser positions, and bringing disciplinary charges, against her. She further alleges that the retaliation was a manifestation of the Department's unwritten but pervasive custom of punishing speak out about police misconduct and encouraging, if not facilitating, silence among officers. Defendants move for summary judgment on the grounds that plaintiff cannot make out a prima facie case of First Amendment retaliation or establish municipal liability. Defendant Charles Campisi moves for summary judgment on the grounds that he was not personally involved in plaintiffs alleged constitutional deprivations. For the reasons stated below, defendants' motion is DENIED in part and GRANTED in part.

 BACKGROUND

  A. Facts

  On a motion for summary judgment, the court should view the facts in the light most favorable to the plaintiff and resolves all factual disputes in plaintiffs favor. See Fed.R.Civ.P. 56(c); Mandell v. County of Suffolk, 316 F.3d 368, 374 (2d Cir. 2003). The following facts are construed accordingly.

  Plaintiff Eileen Barry was appointed as a police officer in 1988 and joined the New York City Police Department (hereinafter the "NYPD" or the "Department"). She was promoted to sergeant in 1994, at which time she served as a patrol sergeant in the 101st Precinct, supervising up to eighteen police officers at a time. Shortly thereafter, she became a supervisor in the Precinct's Anti-Crime Unit, supervising between four and eight police officers. See Pl.'s Local Rule 56.1 Statement, p. 1. Barry remained in the 101* Precinct until May of 1995 when she became the chauffeur and administrative assistant to Chief of Patrol Wilbur Chapmun. Although plaintiff evaluated one or two officers as the Chiefs assistant, "in that office there was really no need for [that type of] supervisory work." Dep. of E. Barry, at 30. In March of 1996, plaintiff Barry transferred to the 105th Precinct where she served again as a patrol supervisor, overseeing up to twenty officers at a time. In March of 1997, plaintiff became a patrol sergeant in the Queens South Task Force. In that capacity, she supervised officers who were deployed for large-scale events.

  On November 30, 1998, plaintiff became the supervisor of the Truancy Unit in the Patrol Borough Queens South Task Force. The purpose of the Unit was to pick up students who were supposed to be in school and bring them back to their school. Pl.'s Affidavit at ¶ 5. As the supervisor, plaintiff conducted limited administrative duties and supervised five officers on truancy patrol. She reported to Captain Robert Mullane, Commanding Officer of the Queens South Task Force. Id. She worked day hours, Monday through Friday, with weekends off. Pl's Affidavit at ¶ 5.

  On January 8, 1999, Police Officer Eugene Harty, one of the officers in the Unit, disclosed to plaintiff that he and other officers in the Unit had recently falsified information on truancy reports and forged the signature of school officials.*fn1 Pl.'s Affidavit at ¶ 6; Dep. of E. Barry, at 98. Despite Harty's express wishes to the contrary, plaintiff immediately notified Lieutenant Daniel Mazza about what Harty had told her. On this same day, Harty's information was communicated to Integrity Control Officer Kelley Ferrazzolli, Captain Robert Mullane, and the Internal Affairs Bureau. Id. As a result, at the command of defendant Captain Gary Reiss, the Queens South Investigations Unit undertook an investigation into possible falsification of reports within the Unit, with the focus of the investigation on the time period from the December 1998 until early January, 1999. Dep. of G. Reiss, at 15-16. Captain Reiss assigned defendant Sergeant Anthony Petro to the investigation. Dep. of A. Petro, at 5-7. Captain Reiss sat in on Petro's interviews of officers in the Unit, during which they learned that previous Truancy Unit supervisors put pressure on officers to increase the number of truants reported each day, and that officers had falsified reports prior to plaintiffs arrival.

  According to plaintiff, in April of 1999, she had a private conversation with Captain Reiss in which he stated that he and Assistant Chief Joseph Fox, Commanding Officer of Patrol Borough Queens South, realized that plaintiff had not engaged in any wrongdoing at the Unit, but that she was going to have to "take a hit" so that officers who had previously supervised the Unit and were now "higher up's" would not be injured by the investigation's findings. Pl's Affidavit at ¶ 10. He offered her a "command discipline," the lowest form of discipline, thereby allowing the Department to close the examination with an admission of wrongdoing on her part. Plaintiff refused Captain Reiss's offer. Id. at ¶ 10-11.

  Plaintiff further alleges that in the spring of 1999, her "duties were virtually to do nothing but to report to work." Id. at ¶ 12. Specifically, she claims that Captain Mullane stripped her of her responsibilities by limiting her to administrative work, removing her from patrol and reducing her supervisory role. Id. at ¶ 12; Dep. of E. Barry, at 47-51.

  On May 8, 1999, at the recommendation of Captain Reiss, plaintiff was served with a disciplinary charge alleging that she failed to supervise the Truancy Unit from December 1998 through January 1999. Dep. of G. Reiss, at 45,73-74; Def.'s Ex. D. Captain Mullane transferred plaintiff from the Truancy Unit to the Queens South Task Force in September, 1999. Assistant Chief Joseph Fox was made aware of the transfer. According to plaintiff, Captain Mullane limited her duties to administrative tasks, she went out on patrol on an infrequent basis, and no one reported to her. Dep. of E. Barry, at 53-54,59; Pl.'s Affidavit at ¶ 13-15. She worked from 10 a.m. until 6 p.m., with Fridays and Saturdays off. Pl's Affidavit at ¶ 15. Shortly after the September transfer, she was assigned to security of the Task Force building, with five officers reporting to plaintiff and another sergeant initially, and then later to a third sergeant as well. Id. Plaintiff worked the midnight tour with rotating days off. Id. On December 3, 1999, plaintiff filed a complaint with the Department's Internal Affairs Bureau, the Chief of which is defendant Charles Campisi. Def.'s Ex. I. Her Internal Affairs complaint charges that the Patrol Borough Queens South Investigations Unit improperly focused its investigation of the Truancy Unit on the time during which she was the supervisor, that the disciplinary charges brought against her for failure to supervise the Truancy Unit were unfair, that she was retaliated against by being reprimanded for going to church on personal time, and that members of the Department told her to stop talking about what happened at the Truancy Unit. Id. On March 17, 2000, the Internal Affairs Bureau issued an investigative findings report. According to the report, in investigating plaintiffs complaint, the Bureau interviewed Sergeant Petro, plaintiff, the officers assigned to the Truancy Unit, and Captain Reiss, in addition to throughly reviewing the investigation conducted by the Queens South Investigations Unit. Id. Based on its review, the Bureau concluded that Sergeant Petro was exonerated from all allegations of wrongdoing, Barry's charges regarding the unfairness of the disciplinary charges were unfounded, her retaliation claim was unsubstantiated, and her allegation that the Department encouraged was unsubstantiated. Id.

  On August 28 and 29, 2000, the Assistant Deputy Commissioner of Trials, Robert W. Vinal, held a hearing on the disciplinary charges brought against plaintiff for her alleged failure to supervise the Truancy Unit. On November 1, 2000, Commissioner Vinal found Barry not guilty of the charges, stating: "It is clear that the instant charge was brought solely as a result of the discovery that all of the officers (with one exception) assigned to the TU were engaged in a conspiracy to inflate TU enforcement statistics by preparing false YRR's using fictitious names and addresses, thus allowing TU officers to take credit for the apprehension of non-existent truants." Def.'s Ex. E. at 12. He goes on to state: "I find the Respondent Not Guilty as charged because the Department did not prove that the Respondent failed to take required supervisory actions which could have resulted in the discovery of this conspiracy before Harty disclosed its existence to her. Moreover, it is clear upon learning this serious allegation, Respondent made immediate and appropriate notifications." Id. The Commissioner made special note of the fact that officers had falsified in the months before Barry became the Supervisor of the Truancy Unit and that she had only been serving as supervisor for five weeks when she became aware of the problem. Id. On November 14, 2000, Police Commissioner Bernard Kerik approved the Commissioner's finding of "not guilty." Id. at 14.

  On August 29, 2001, plaintiff left the Queens South Task Force and became one of the sergeants responsible for security at Police Headquarters. There, she was the immediate supervisor of a squad of thirteen police officers, with roughly 50 civilian officers, police officers, and cadets also reporting to her. On December 5, 2001, plaintiff transferred to Queens South Borough Office and became the Commanding Officer of the COMPSTAT and PIMS unit which was responsible for collecting statistical information on criminal activity within the Queens South area. In that capacity, plaintiff supervised two detectives and five police officers. During her tenure at Headquarters, one of plaintiffs detectives, Detective Sheryle Schiefer, filed an internal complaint with the Office of Equal Employment and Internal Affairs in which she alleged that plaintiff made racially derogatory remarks about officers at a promotional ceremony. As a result of this complaint, in April of 2002, plaintiff was transferred from her position at Headquarters to the Evidence Collection Unit where she was an administrative sergeant Plaintiff supervised one officer in charge of administrative tasks, although plaintiffs hours and the subordinate officer's hours did not precisely coincide and, according to plaintiff, her supervision was very limited. Dep. of E. Barry, at 74-77. Plaintiff left the Evidence Collection Unit around February 1, 2003 on maternity leave, and then she began a one-year leave for child care on April 22, 2003.*fn2

  In July of 2003, plaintiff was served with disciplinary charges arising out of Detective Schiefer's complaint with the Office of Equal Employment. Although the Office of Equal Employment ultimately determined that plaintiff was not guilty of having made racially suspect statements in the work place, plaintiff was given a command discipline charge for "swaggering" in and out of her office. The charge provided that the Department would not take action for the "swaggering" violation until plaintiff returns to work in April, 2004.

  2. Plaintiff's Allegations

  Plaintiff filed this lawsuit in November of 2001. She charges defendants New York City Police Department, Howard Safir as Commissioner of the Police Department, Chief Charles Campisi, Captain Gary Reiss, Chief Joseph Fox, Captain Robert Mullane, and Sergeant Anthony Petro with retaliating against her for exercising her First Amendment right to expose police misconduct.*fn3 Specifically, she claims that defendants first asked her to accept the blame for the falsification of reports by Truancy Unit officers, despite their knowledge that officers had falsified reports before she became the supervisor, as a means to shelter these officers from allegations of wrongdoing. When she refused to do so, defendants brought disciplinary charges against her, conducted a cursory investigation into the Unit that was specifically designed to shield previous supervisors from injury and punish plaintiff for having spoken out about the Unit's corruption, stripped her of her material responsibilities, and transferred her to comparatively inferior positions within the Department. Plaintiff further alleges that as a result of speaking out about the corruption within the Truancy Unit, Lieutenant Ferrazzoli in the Queens Task Force stopped speaking to her, officers referred to plaintiff as a "rat," her efforts to discipline officers under her command were interfered with, a dispatcher ignored her request for back-up she was not awarded the position of Training Sergeant in the Queens Task Forth upon application, and she was transferred to positions in which she had little to no authority. The cumulative effect of these various acts was to diminish and foreclose plaintiffs opportunities for occupational advancement within the NYPD. For these retaliatory acts and the concomitant violation of her First Amendment rights, Plaintiff seeks compensatory and punitive damages as relief.

 ISSUE

  Defendants move for summary judgment on the grounds that plaintiff cannot a) make out a case for retaliation, b) show that an official custom or policy caused the alleged violation of her First Amendment rights or the retaliation she suffered, and c) ...


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