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NONNENMANN v. CITY OF NEW YORK

May 20, 2004.

GREGORY J. NONNENMANN, Plaintiff -against- THE CITY OF NEW YORK, MAYOR MICHAEL BLOOMBERG, POLICE COMMISSIONER RAYMOND KELLY, DEPUTY CHIEF EDWARD CANNON, CAPTAIN NATALE GALATIOTO, CAPTAIN JOHN McCLUSKEY, AND THE NEW YORK CITY POLICE DEPARTMENT, Defendants


The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

"Pro se" plaintiff Gregory J. Nonnenmann, an attorney and retired police lieutenant, brings this action against the City of New York, the New York City Police Department, Mayor Michael Bloomberg, Police Commissioner Raymond Kelly, Deputy Chief Edward Cannon, Captain Natale Galatioto, and Captain John McCluskey, pursuant to (1) 42 U.S.C. § 1983 and the First Amendment, (2) the Sixth Amendment, (3) the Fair Labor Standards Act, and (4) New York defamation laws (Dkt. No. 1: Compl; Dkt. No. 14: Am. Compl; Dkt. Nos. 32-33, 39: Discontinuances; Dkt. No. 36: Nonnenmann Aff. ¶¶ 3-4.) Presently before this Court is defendants' summary judgment motion. (Dkt. Nos. 28-29.) For the reasons set forth below, defendants should be granted summary judgment on the § 1983 — First Amendment and Sixth Amendment claims, and denied on the Fair Labor Standards Act claim and the state law defamation claim.

FACTS

  Nonnenmann was admitted to practice law in New York in 1983 (Dkt. No. 11: Am. Compl. ¶ 7; Dkt. No. 35: Nonnenmann 56.1 Stmt. ¶ 1; Dkt. No. 28: City 56.1 Stmt. ¶ 3) and is representing himself in this action. A New York City Police Officer since 1983, Nonnenmann was promoted to Sergeant in 1989 and Lieutenant in 1998. (Am. Compl. ¶ 6; City 56.1 Stmt. ¶ 1-2; Nonnenmann 56.1 Stmt. ¶ 1.) In April 2001, Nonnenmann transferred from the 28th Precinct to the 110th Precinct and was assigned to the 1st Platoon.*fn1 (City 56.1 Stmt. ¶¶ 8-9; Dkt. No. 28: Molfetta Aff. Ex. F: Nonnenmann Dep. at 57-58)*fn2 After a few days at the 110th Precinct, Nonnenmann was appointed Grand Larceny Lieutenant, a position that permitted Nonnenmann to propose his own schedule for approval. (City 56.1 Stmt. ¶ 10; Nonnenmann Dep. at 60.)

  Defendant Captain Natale Galatioto became the 110th Precinct's Commanding Officer in May 2001. (City 56.1 Stmt. ¶ 11.) After a few weeks, Capt. Galatioto assigned Nonnenmann to the 1st Platoon for a brief period and then appointed Nonnenmann as the 110th Precinct's Replacement Lieutenant. (City 56.1 Stmt. ¶ 12; Nonnenmann Dep. at 63-64.) As Replacement Lieutenant, Nonnenmann's shifts varied with the precinct's needs, but he generally worked the 2d Platoon, which is the 8 a.m. to 4 p.m. shift, or the 3d Platoon, from 4 p.m. to midnight. (City 56.1 Stmt. ¶ 13; Nonnenmann Dep. at 63.) In January 2002, Capt. Galatioto reassigned Nonnenmann to the 1st Platoon. (City 56.1 Stmt. ¶ 15; Nonnenmann 56.1 Stmt. ¶ 11.)

 The February 3. 2002 Stop-and-Frisk

  On February 3, 2002, around 1 a.m. Capt. Galatioto, Lieutenant James Lombardi, Nonnenmann, Nonnenmann's driver Officer Robert Dirosse, and others responded to a radio report that, at the intersection of 41st Avenue and Junction Boulevard in Queens, a group of males were creating a disturbance and one of the males may have a gun. (Am. Compl. ¶ 9; City 56.1 Stmt. ¶¶ 16-17; Nonnenmann 56.1 Stmt. ¶ 15; Nonnenmann Aff. ¶¶ 7, 194-96; Nonnenmann Dep. at 80-89; Ex. G: Galatioto Dep. at 29-31, 35.) Nonnenmann "was the first on the scene, [and] observed five male Hispanics, less than a half a block away talking. There was no apparent dispute, no complainants at the location, no broken bottles or glass, no indication of any unlawful or criminal activity." (Nonnenmann Aff. ¶¶ 8, 196.)

  When Nonnenmann arrived at the scene, he remained in his patrol car and observed Capt. Galatioto and Lt. Lombardi stop the group of five Hispanic males. (City 56.1 Stmt. ¶ 17-18; Galatioto Dep. at 29-30.) According to Nonnenmann, Capt. Galatioto and Lt. Lombardi arrived at the scene, "exited their car and immediately stopped all the individuals." (Nonnenmann Aff. ¶ 10.) Nonnenmann also contends that during the frisk, Nonnenmann was "`[g]etting out of [his] car to go down to where they were.'" (Nonnenmann 56.1 Stmt. ¶ 19; Nonnenmann Dep. at 83.)

  Capt. Galatioto, Lt. Lombardi, and Officer Dirosse frisked the males. (City 5 6.1 Stmt. ¶¶ 19-21; Nonnenmann Aff. ¶¶ 10, 194; Nonnenmann Dep. at 83-84; Galatioto Dep. at 29-30.) At the conclusion of the stop-and-frisk, the group of males were advised that they were free to leave or stay in the area, and were not arrested or taken into custody. (City 56.1 Stmt. ¶ 22.) Nonnenmann claims that at the time of the stop-and-frisk, he wrote in his NYPD memo book: "no legal basis for the stop and frisk." (Am. Compl. ¶ 9; Nonnenmann Aff. ¶ 11; Nonnenmann Dep. at 85, 88; City 56.1 Stmt. ¶ 24.)

  According to Nonnenmann, Police Officer Jose Abreu observed the stop-and-frisk while off-duty and on his way home. (City 56.1 Stmt. ¶ 25; Nonnenmann 56.1 Stmt. ¶ 20; Nonnenmann Aff. ¶ 12; Ex. Y: 4/23/03 IAB Rpt.) At around 10:50 a.m that day, "Officer Abreu informed [Nonnenmann] that he witnessed the stop and frisk, felt it was unjustified and racially motivated. [Abreu] request[ed] that [Nonnenmann] file a misconduct complaint against the defendant." (Nonnenmann Aff. ¶ 12; Nonnenmann 56.1 Stmt. ¶ 20.) At 11:00 a.m. on February 3, 2002, Nonnenmann called IAB to file a formal complaint about the stop-and-frisk. (Am. Compl. ¶ 10; City 56.1 Stmt. ¶ 26; Nonnenmann 56.1 Stmt. ¶ 21; Nonnenmann Dep. at 91-92.) Pursuant to NYPD "Patrol Guide Procedure 207-21," Nonnenmann was "mandated to report all `Allegations of Corruption and Serious Misconduct Against Members of the Service'" and" [f]ailure to report can result in termination." (Am. Compl. ¶ 8; Ex. X & Am. Compl. Ex. B: NYPD Patrol Guide 207-21; City 56.1 Stmt. ¶ 27.)

  On February 8, 2002, Nonnenmann attended a departmental interview at the Queens Borough North Investigations Unit, which was the IAB office that first handled his complaint. (Am. Compl. ¶ 14; City 56.1 Stmt. ¶¶ 28-29; Nonnenmann Aff. ¶¶ 17, 58.) Nonnenmann's request for an adjournment because his wedding was the next day was denied. (Nonnenmann 56.1 Stmt. ¶ 33; Am. Compl. ¶ 14; Nonnenmann Aff. ¶ 17.) When he arrived at the meeting, however, Capt. McNulty of IAB told Nonnenmann that he "was now the subject of the hearing and was allowed an adjournment as a matter of right." (Nonnenmann 56.1 Stmt. ¶ 34; Nonnenmann Aff. ¶ 18; Am. Compl. ¶ 14.)

  The stop-and-frisk investigation was later referred to IAB office Group 1, which "investigates cases involved high level members of the NYPD and cases that receive media attention." (City 56.1 Stmt. ¶ 35; Am. Compl. ¶ 20; Nonnenmann 56.1 Stmt. ¶ 49.) Defendant Captain John McCluskey, the Commanding Officer of IAB Group 1, led the investigation. (City 56.1 Stmt. ¶ 36; Nonnenmann 56.1 Stmt. ¶ 49.)

  In IAB's April 23, 2003 "Investigative Findings Case Closing/Final Report," (1) Capt. Galatioto was "exonerated" of the allegation that the February 3, 2002 stop-and-frisk was racially motivated; (2) Nonnenmann's allegation that Chief Cannon made slanderous comments against him were deemed unsubstantiated; and (3) Nonnenmann's allegations that Capt. Galatioto retaliated against him were deemed unsubstantiated. (City 56.1 Stmt. ¶¶ 70-73; Ex. Y: 4/23/03 IAB Rpt.)

 Nonnenmann's Allegations Against Defendant Captain Galatioto

  On February 15, 2002, Nonnenmann filed a complaint with the Police Department Office of Equal Employment Opportunity ("OEEO"). (Am. Compl. ¶ 22; City 56.1 Stmt. ¶ 37; Ex. C: 2/15/02 Nonnenmann NYPD OEEO Compl.; Nonnenmann 56.1 Stmt. ¶ 50; Nonnenmann Aff. ¶ 73) Nonnenmann alleged that he "is being discriminated against based on race and national origin" and "is being retaliated against for filing or assisting in an investigation of a complaint." (Ex. C: 2/15/02 Nonnenmann NYPD OEEO Compl.) The Police Department referred Nonnenmann's OEEO complaint to IAB for investigation (Am. Compl. ¶ 25; City 56.1 Stmt. ¶ 45), and combined it with IAB's investigation of the stop-and-frisk (City 56.1 Stmt. ¶ 37; Ex. L: 3/1/02 NYPD EEO Letter to Nonnenmann). On February 19, 2002 (and again on March 26, 2002), Nonnenmann filed a notice of claim alleging retaliation, violations of 42 U.S.C. § 1983 and 2000, the Fourth and Fourteenth Amendments, Title VII, libel, slander, and discriminatory retaliation in violation of New York State and City Civil Rights laws. (Nonnenmann 56.1 Stmt. ¶ 47; Ex. R. Nonnenmann Notices of Claim; Nonnenmann 56.1 Stmt. Ex. O: Nonnenmann Notices of Claim.) On February 24 and 25, 2002, Nonnenmann and his union filed unfair labor practices grievances with the NYPD Office of Labor Relations alleging that Capt. Galatioto retaliated against him and "violated the collective bargaining agreement by conducting a disciplinary hearing without allowing [Nonnenmann] the benefit of legal or union counsel." (Am. Compl. ¶ 23-24; City 56.1 Stmt. ¶¶ 43-44; Ex. J: Nonnenmann 2/24/02 Unfair Labor Practice Compl.; Nonnenmann Aff. ¶ 73) Like Nonnenmann's OEEO complaint, his unfair labor practices grievance was combined with IAB's stop-and-frisk investigation. (Am. Compl. ¶ 43; Nonnenmann Aff. ¶ 73; City 56.1 Stmt. ¶¶ 43-44; Ex. Q: 8/20/02 Office of Labor Relations Letter.)

  On March 28, 2002, Nonnenmann filed a complaint against defendants with the Civilian Complaint Review Board. (Am. Compl. ¶ 27.) On June 1, 2002, Nonnenmann filed a complaint against Capt. Galatioto with the Internal Affairs Bureau. (Am. Compl. ¶ 31.) On July 24, 2002, Nonnenmann filed a complaint with the Internal Affairs Bureau alleging continued retaliation by Captain McCafferty. (Am. Compl. ¶ 41.) On August 5, 2002, Nonnenmann sent a complaint to Police Commissioner Raymond Kelly. (Am. Compl. ¶ 42.)

  After Capt. Galatioto allegedly denied Nonnenmann one hour and twenty minutes of overtime on May 3, 2002, Nonnenmann filed a grievance against Capt. Galatioto on May 8, 2002. (Am. Compl. ¶ 29; City 56.1 Stmt. ¶ 47; Nonnenmann 56.1 Stmt. ¶ 61; Nonnenmann Aff. ¶ 76.) Nonnenmann admits that he was eventually paid for that overtime. (Nonnenmann Aff. ¶ 78; Nonnenmann Dep. at 113-14; Nonnenmann Aff. Ex. G: Nonnenmann 5/30/02 Approved Overtime Slip.)

  Nonnenmann's Transfer From the 1st to 2d Platoon

  On May 31, 2002, Nonnenmann learned that as of June 7, 2002, he would be transferred from the 1st Platoon to the 2d Platoon. (Am. Compl. ¶ 30; City 56.1 Stmt. ¶ 48; Nonnenmann 56.1 Stmt. ¶ 62; Nonnenmann Aff. ¶ 79.) The 1st Platoon is a shift from midnight to 8 a.m., while the 2d Platoon is from 8 a.m. to 4 p.m. (See also page 2 & fn.1 above.) Nonnenmann had been assigned to the 1st Platoon since January 2002 (City 56.1 Stmt. ¶¶ 15, 48; see also page 3 above.) According to Nonnenmann, the shift change "resulted in nearly a $600.00 a month reduction in income and a reduction to [his] life time pension benefits of in excess of $45,000.00" and that "[a]n additional loss of overtime can cause this loss to double." (Am. Compl. ¶ 30.) Specifically, the" 1st platoon commander receives $6,740.00 in night shift differential which is fully pensionable, [while] a 2nd platoon commander does not receive any night shift differential." (Nonnenmann Aff. ¶ 80; Nonnenmann Aff. Ex. H: LBA 5/23/2002 Newsletter.) Nonnenmann claims that Capt. Galatioto removed him from the 1st Platoon "deliberately to reduce [Nonnenmann's] income, upset his family schedule," "reduce the available time by which [Nonnenmann] could practice law," and because Galatioto "was aware [Nonnenmann] was approaching retirement eligibility and by reducing plaintiff's pay his retirement benefits would be substantially reduced." (Nonnenmann Aff. ¶ 79, 229, 234.) Nonnenmann further alleges that the platoon change "was a blatant violation of law and department guidelines" because "Police Department policy, as part of the consent decree with the Federal Government, does not allow transfers or changes to work assignments or hours of a `protected party.'" (Am. Compl. ¶ 30.)

  Also on May 31, 2002, Capt. Galatioto transferred three other 110th Precinct Lieutenants who were Platoon Leaders. (City 56.1 Stmt. ¶ 49.)*fn3 Capt. Galatioto testified that he adjusted all of the Platoon Leader Lieutenants by one shift due to the poor performance of the 110th Precinct and complacency among its officers. (City 56.1 Stmt. ¶ 50; Nonnenmann Aff. ¶ 216; Galatioto Dep. at 76-77.) Capt. Galatioto "felt the lieutenants weren't doing enough to move the place along to get the cops doing what needed to be done" and that "there was a little too much comfort . . . between the bosses and officers." (Galatioto Dep. at 77.) Specifically, Capt. Galatioto was very impressed with Lieutenant Cahill's qualifications, and wanted him on the 3d Platoon because Lt. Cahill "had an extensive background out on the street" and "as a relief lieutenant [Cahill]. . . seemed to be making some head-way with the officers getting to work." (Galatioto Dep. at 76, 110.) The 2d Platoon had a vacancy created by the then-Platoon Leader's promotion to Captain. (Galatioto Dep. at 76.) Capt. Galatioto found Lieutenant Pristera "a little weak" on the 3d Platoon (Galatioto Dep. at 76), and felt that Nonnenmann, as a lawyer, was "probably better suited" on the 2d Platoon because it "is certainly a more administrative tour." (Galatioto Dep. at 97; see also City 56.1 Stmt. ¶ 51.)*fn4 As a result, Capt. Galatioto replaced Nonnenmann with Lt. Pristera on the 1st Platoon, moved Nonnenmann to the vacant position on the 2d Platoon, and replaced Lt. Pristera with Lt. Cahill on the 3d Platoon. (Galatioto Dep. at 76-77.) Capt. Galatioto testified that crime statistics showed "a real dramatic decrease" after the Platoon Leader shifts. (City 56.1 Stmt. ¶ 53; Galatioto Dep. at 97, 110.)

  On June 1, 2002, Nonnenmann filed an IAB complaint against Capt. Galatioto because of his platoon transfer. (Am. Compl. ¶ 31; Nonnenmann 56.1 Stmt. ¶ 67; Nonnenmann Aff. ¶ 82.) Nonnenmann alleges that Sergeant LaPorte of IAB called his home on June 2, 2002, asked him several questions, and ordered him "to remain at [his] residence . . . pending instructions from an IAB Captain." (Am. Compl. ¶ 32; Nonnenmann Aff. ¶ 85.) Nonnenmann alleges that he submitted for six hours of overtime for this period and initially was paid, but that his overtime was subsequently "docked" pursuant to orders from Capt. Galatioto and a Captain McCaffrey. (Am. Compl. ¶ 32; Nonnenmann 56.1 Stmt. ¶ 68; Nonnenmann Aff. ¶ 85; Nonnenmann Aff. Ex. K: Nonnenmann 6/2/02 Overtime Slip & 7/3/02 Denial.) Nonnenmann also claims that he had the right to seek 53 hours of overtime because, as the IAB Sergeant directed, Nonnenmann stayed home for 53 hours until his next tour of duty. (Am. Compl. ¶ 32; Nonnenmann 56.1 Stmt. ¶ 68; Nonnenmann Aff. ¶ 85.)

  According to Nonnenmann, Capt. Galatioto called Nonnenmann at home on June 10, 2002 "to harass [Nonnenmann] about [Nonnenmann's] work and tour changes." (Am. Compl. ¶ 33; Nonnenmann 56.1 Stmt. ¶ 69; Nonnenmann Aff. ¶ 86.) Nonnenmann claims he "is entitled to overtime pay for the invasion of [Galatioto] into [Nonnenmann's] personal time." (Nonnenmann Aff. ¶ 86.)

  Nonnenmann filed another unfair labor grievance against Capt. Galatioto after he did not allow Nonnenmann to use department time to attend medical testing on June 11, 2002 for a line-of-duty injury. (Am. Compl. ¶¶ 34, 36; City 56.1 Stmt. ¶ 54; Nonnenmann Aff. ¶¶ 87, 89.) As Nonnenmann admits, however, Capt. Galatioto permitted him to keep the appointment and leave work on his personal time. (City 56.1 Stmt. ¶ 55; Nonnenmann Aff. ¶¶ 87, 89; Nonnenmann Dep. at 105-06; Galatioto Dep. at 145.) According to the IAB Findings & Case Closing Report, Nonnenmann was later granted the lost time. (Ex. Y: 4/23/03 IAB Rpt.)

  Nonnenmann filed a complaint with the EEOC on June 3, 2002, alleging retaliation since Officer Abreu, a Hispanic, had asked him to file a complaint of racial profiling against Capt. Galatioto for the stop and frisk. (Am. Compl. ¶ 38; City 56.1 Stmt. ¶ 56; Ex. D: 6/3/02 EEOC Compl.) Nonnenmann alleged in his EEOC complaint that on February 4, 2002, the day after the stop-and-frisk, Capt. Galatioto "ordered [Nonnenmann] into his office approximately 10 times . . . for verbal abuse and intimidation." (Ex. D: Nonnenmann 6/3/02 EEOC Compl. ¶ 5; Nonnenmann 56.1 Stmt. ¶ 31.) Nonnenmann claimed that at this meeting, Capt. Galatioto "blamed [him] for [Galatioto's] failure to properly prepare the required documentation to justify his search" of the five males. (Ex. D: Nonnenmann 6/3/02 EEOC Compl. ¶ 5.) According to Nonnenmann's EEOC complaint, union members were present for several hours and "were forced to intervene" on behalf of Nonnenmann and Dirosse. (Id.) Nonnenmann further alleged that he was retaliated against when: (1) he was ordered to attend a department hearing at 11:00 a.m. on February 8, 2002, the day before his wedding, and was refused an adjournment (City 56.1 Stmt. ¶ 57; Nonnenmann 56.1 Stmt. ¶¶ 32, 33; Nonnenmann Aff. ¶ 17; Ex. D: Nonnenmann 6/3/02 EEOC Compl. ¶ 6; see also pages 4-5 above); (2) Nonnenmann's locker contents were disturbed between February 12 and February 14, 2002 (although nothing was taken) (City 56.1 Stmt. ¶ 57; Nonnenmann 56.1 Stmt. ¶ 46; Nonnenmann Aff. ¶ 44; Ex. D: Nonnenmann 6/3/02 EEOC Compl. ¶ 9); (3) Nonnenmann was allegedly the subject of defamatory comments by Chief Cannon during remarks to the 3rd Platoon on February 13, 2002 (City 56.1 Stmt. ¶ 57; Ex. C: Nonnenmann 6/3/02 EEOC Compl. ¶ 10); and (4) on February 18, 2002, Capt. Galatioto called Nonnenmann into his office for "an interim evaluation meeting," which Nonnenmann believes was intended to"discipline and harass" Nonnenmann in the absence of a union delegate (City 56.1 Stmt. ¶ 57; Nonnenmann 56.1 Stmt. ¶ 51; Nonnenmann Aff. ¶¶ 45-56, 184, 185; Ex. D: Nonnenmann 6/3/02 EEOC Compl. ¶ 11).*fn5 On October 5, 2002, Nonnenmann received an EEOC right to sue letter dated September 30, 2002. (Am. Compl. ¶ 44; City 56.1 Stmt. ¶ 63; Nonnenmann 56.1 Stmt. ¶ 76.) The Compstat Meeting

  On July 12, 2002, Capt. Galatioto ordered Nonnenmann to attend a Headquarters Compstat meeting. (Am. Compl. ¶ 40; City 56.1 Stmt. ¶ 59; Nonnenmann 56.1 Stmt. ¶ 73; Nonnenmann Aff. ¶ 94; Nonnenmann Dep. at 123-24.) Although Nonnenmann alleges that Capt. Galatioto "stated he was going to put [Nonnenmann] on the podium and see that [Nonnenmann] was publicly embarrassed," Capt. Galatioto never called Nonnenmann to the podium. (Am. Compl. ¶ 40; see also Nonnenmann Aff. ¶ 94; Nonnenmann Dep. at 124-25.) Nonnenmann claims that he nevertheless was "publicly embarrassed" by "watching the higher-ups on the Police Department to commit [a]n act of gender discrimination against Chief Kunk[le]." (Nonnenmann Dep. at 125; Am. Compl. ¶ 40.) Nonnenmann concedes that no acts of discrimination or retaliation against him were committed at the July 12, 2002 Compstat meeting. (Nonnenmann Dep. at 125.)

  On July 22, 2002, Nonnenmann filed an unfair labor practice grievance, alleging retaliation including (1) his platoon transfer; (2) denial of overtime for the time IAB ordered him to remain home following his June 1, 2002 IAB complaint against Capt. Galatioto, and (3) Capt. Galatioto's allegedly harassing June 10, 2002 phone call to Nonnenmann's home. (Ex. O: 7/22/02 Grievance Form; City 56.1 Stmt. ¶ 58.) On July 24, 2002, Nonnenmann filed an IAB complaint alleging "continued retaliation during an ongoing IAB investigation." (Am. Compl. ¶ 41; City 56.1 Stmt. ¶ 60.) Like several of Nonnenmann's other complaints, the July 24, 2002 IAB complaint was merged with lAB's stop-and-frisk investigation. (City 56.1 Stmt. ¶ 60.)

  On August 29, 2002, Capt. Galatioto transferred Nonnenmann from the 2d Platoon (8 a.m. to 4 p.m.) to the 3d Platoon (4 p.m. to midnight) and appointed Nonnenmann the "Special Operations Burglary Lieutenant." (City 56.1 Stmt. ¶ 62.) Nonnenmann's account is slightly different:
On or about August 29, 2002, Capt[ain] Shandley was chosen to command a PBQN [Patrol Borough Queens North] initiative, with resources being diverted from other commands to the 110th Pct. Inspector D'Amico, the adjutant of PBQN, was in charge of the overall detail. Capt. Shandley asked [Nonnenmann] if he would transfer to his initiative. [D'Amico] stated it would separate [Nonnenmann] from Galatioto. [Nonnenmann] accepted the new assignment; which lasted until Insp. D'Amic[o] was transferred from PBQN, at which time [Nonnenmann] was once again working directly for defendant Galatioto, still under the title as the Special Operations Burglary Lieutenant.
(Nonnenmann 56.1 Stmt. ¶ 74.)

  Nonnenmann alleges that on or about January 30, 2003, Capt. Galatioto "ordered that [Nonnenmann] was to receive no further overtime assignments." (Am. Compl. ¶ 51(g).) Nonnenmann filed an IAB complaint against Capt. Galatioto as a result. (Am. Compl. ¶ 51(g); Nonnenmann 56.1 Stmt. ¶ 77.)

  In February 2003, Capt. Galatioto ordered the 110th Precinct's Anti-Crime team to work overtime on Mondays because the burglary rate was steadily rising and Monday was the team's only day off. (City 56.1 Stmt. ¶ 64.) As a result of the Anti-Crime team's Monday assignment, Capt. Galatioto cancelled two days of Nonnenmann's scheduled overtime on Mondays in February 2003. (City 56.1 Stmt. ¶ 64; Nonnenmann 56.1 Stmt. ¶ 78.) Nonnenmann filed an IAB complaint against Capt. Galatioto regarding the cancelled overtime. (Nonnenmann 56.1 Stmt. ¶ 78.)

  Nonnenmann further alleges that on February 5, 2003, Capt. Galatioto "unlawfully committed an act of physical contact against" him, and on February 25, 2003, "physically removed a clip board from [Nonnenmann's] hands and again accused [Nonnenmann] of being in an improper uniform." (Am. Compl. ¶ 51(k); Nonnenmann 56.1 Stmt. ¶ 82; Nonnenmann Aff. ¶¶ 143, 240.) Nonnenmann's Retirement

  Nonnenmann filed for retirement on March 12, 2003, allegedly "[t]o protect his pension and because of the unrelenting harassment," effective July 30, 2003. (City 56.1 Stmt. ¶ 75; Nonnenmann Aff. ¶ 144.) Nonnenmann claims that he "was forced to retire before he intended," and "received no overtime from April through July 2003" as a result. (Nonnenmann Aff. ¶¶ 145, 150.)*fn6 Nonnenmann estimates that he lost at least $362,553.75, based on 301 hours and 33 minutes of cash overtime he claims he lost through early retirement, multiplied by 50% and his life expectancy of 37 years. (Nonnenmann Aff. ¶¶ 151, 153.)

 Nonnenmann's Allegations Against Defendant Chief Cannon

  On February 12, 2002, The New York Daily News published an article about the February 3, 2002 stop-and-frisk. (Am. Compl. ¶ 19; Nonnenmann 56.1 Stmt. Ex. G: John Marzulli, 3 Cops Accuse Chief of Misconduct vs. Latinos, N.Y. Daily News, Feb. 12, 2002; Nonnenmann 56.1 Stmt. ¶ 36; Nonnenmann Aff. ¶ 20.) The article read:
A hard-charging NYPD precinct commander is under investigation for allegedly conducting an illegal stop-and-frisk procedure last week on five Hispanic men on a Queens street, the Daily News has learned.
Capt. Natale Galatioto, commander of the 110th Precinct in Queens, was accused of misconduct by three of his own cops who were present. One of the accusers, a lieutenant, is also a lawyer, sources told The News.
"I don't think there's any merit to [the allegation]," Galatioto said yesterday when reached at the stationhouse. "I think I'm a fair and balanced supervisor." But some cops at the command, which covers Corona, Jackson Heights and Elmhurst, portrayed Galatioto as a hard-driving boss whose demand for more arrests and summonses could lead to civil rights abuses.
The cops have complained about him to the Latino Officers Association.
"The people whose rights are being violated are primarily of Mexican and South American descent, a community that lacks representation," said the association's president, Anthony Miranda. "These officers observed something wrong and took a stand."
NYPD officials did not immediately respond to a request for comment, but the allegation against a high-ranking officer comes at a sensitive time for the NYPD, as Mayor Bloomberg and Police Commissioner Raymond Kelly carry out a highly publicized crackdown on quality-of-life offenses.
The Feb. 3 stop-and-frisk was prompted by two 911 calls involving quality-of-life complaints, said police sources close to the probe.
About 1 a.m., one caller reported a group of about 15 Hispanic men breaking bottles on Junction Blvd. Then a second caller reported a noisy Hispanic man who may have been armed with a gun in the past. The callers gave no further description.
Sources said Lt. Greg Nonnenmann and his driver, Officer Robert Dirosse, saw five Hispanic men about two blocks from the location given by the callers. They did not notice any broken bottles and the men were just talking. Nonnenmann. who is a 19-year NYPD veteran and also a practicing lawyer, told his driver there was no reason to frisk the men.
Then Galatioto and his driver, Lt. James Lombardi, arrived and proceeded to search the men. Galatioto instructed Dirosse to prepare stop-and-frisk reports, the sources said.
Stop-and-frisk reports, updated after the fatal shooting by cops of unarmed immigrant Amadou Diallo, contain a checklist for specifying the reason for the police action. Dirosse, ...

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