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CRUDELE v. CITY OF NEW YORK POLICE DEPARTMENT

United States District Court, S.D. New York


May 24, 2004.

GERARD CRUDELE, Plaintiff, -against- THE CITY OF NEW YORK POLICE DEPARTMENT, THE CITY OF NEW YORK, STANLEY EDELMAN and HOWARD SAFIR, Individually and in their Official Capacity, Defendants

The opinion of the court was delivered by: RICHARD CASEY, District Judge

MEMORANDUM OPINION AND ORDER

Gerard Crudele ("Plaintiff) brings this action against the City of New York Police Department ("NYPD"), the City of New York, Stanley Edelman, and Howard Safir (collectively, "Defendants"), challenging the constitutionality of the NYPD sick-leave policy on the basis that it prevents officers from exercising their fundamental rights and alleging that Defendants conspired to deny Plaintiff his constitutional rights, thereby violating 42 U.S.C. § 1985. Presently before the Court is Defendants' motion for summary judgment. For the reasons set forth below, Defendants' motion is DENIED.

I. BACKGROUND*fn1

  Plaintiff was employed as a New York City Transit Police Officer from December 1980 until he retired on July 27, 1997. In February 1993, Plaintiff suffered a fall while on duty at a Brooklyn subway station, sustaining injuries to his back, legs, head, and shoulders. After this accident and until his retirement, Plaintiff took lengthy periods of sick leave.

  From the date of Plaintiff's injury until April 1995, Plaintiff's sick leave conditions were governed by the New York City Transit Authority. Although the Transit Authority's sick leave policy required Plaintiff to remain in his residence when he reported sick, it allowed him substantial flexibility to leave his home for various reasons. (See Crudele Dep. at 70, 72, 80.)

  After the Transit Authority merged with the NYPD in April 1995, the conditions governing Plaintiff's sick leave became much more restrictive. The NYPD sick leave policy allows officers unlimited paid sick leave; however, officers reporting sick must comply with certain conditions, which are set forth in the NYPD Patrol Guide. Unless he or she is unable to travel, an officer claiming to be sick must report to a district surgeon employed by the NYPD's Medical Division, who is responsible for assessing an officer's condition and determining whether he or she is fit to return to work. The officer is prohibited from leaving his or her residence, with two exceptions. First, an officer may, with permission from the "sick desk," leave his or her residence to attend a medical appointment. Second, an officer may leave his residence for other reasons for a specified time period, provided that he or she has obtained a pass from the district surgeon. Such passes are typically granted for periods of between four and sixteen hours. (See Edelman Dep. at 82-87.) An officer may appeal the denial of a request for an out-of-residence pass to the clinic supervisor. (Valenti Aff. at ¶ 12.)

  Due to his frequent absences, Plaintiff was designated as "Chronic Absent, Category B," a category applicable to officers who have been out sick on six or more occasions during a twelve-month period or have been out sick on four or more occasions totaling 40 or more sick days during a twelve-month period. (Id. at ¶¶ 5-7.) Because of these officers' sick leave histories, the district surgeon applies a stricter standard in determining whether or not to grant a request for time out of residence. When a "Category B" officer makes such a request, it is generally denied or limited to no more than four hours. (Id. at ¶ 4.) The policy makes no accommodation for an officer who is out sick due to a long-term disability.

  The NYPD Absence Control Unit monitors officers' compliance with the sick-leave requirements, focusing primarily on officers with a "Chronic" designation. When an officer reporting sick is found to be out of residence at an unauthorized time, the Absence Control Unit is authorized to take a range of disciplinary measures against the officer, up to and including filing Charges and Specifications against the officer. Where discipline beyond a simple warning is contemplated, the unit typically consults with the NYPD Advocate's Office before taking any action. (Id. at ¶ 16.)

  II. DISCUSSION

  In order to prevail on a motion for summary judgment, the moving party must establish that there are no genuine issues of material fact and that judgment is warranted as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Facts, and all inferences drawn therefrom, must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574. 586 (1986): American Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994). If the moving party meets its burden, then the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 250.

 A. Constitutionality of Sick Leave Policy A policy regulating a municipality's agents or employees is generally evaluated under "rational basis" review. See Kelley v. Johnson, 425 U.S. 238, 245 (1976). Accordingly, such a regulation will be upheld as long as the municipal government can show a rational relationship between the challenged regulation and the state interest it is intended to promote. Pickering v. Bd. of Educ., 391 U.S. 563 (1968). The vast majority of courts that have considered municipal sick-leave policies similar to the one at issue here have evaluated the constitutionality of these policies under a rational basis standard of review. See, e.g., Grain v. Bd. of Police Comm'rs of the Metro. Police Dep't, 920 F.2d 1402, 1409 (8th Cir. 1991); Capasso v. Metro. Transp. Auth., 198 F. Supp.2d 452, 460 (S.D.N.Y. 2002); Monahan v. City of New York Dep't of Corrs., 10 F. Supp.2d 420 (S.D.N.Y. 1998); Uryevick v. Rozzi, 751 F. Supp. 1064, 1068 (E.D.N.Y. 1990); Korenyi v. Dep't of Sanitation, 699 F. Supp. 388 (E.D.N.Y. 1988); Voorhees v. Shull, 686 F. Supp. 389, 394 (E.D.N.Y. 1987). But see Pienta v. Vill. of Schaumburg, III., 710 F.2d 1258 (7th Cir. 1983). Under the rational relationship test, the Court must ensure not only that the policy is rationally related to a valid state interest, but also that it is connected to that interest in a "non-arbitrary fashion." Capasso, 198 F. Supp.2d at 460; Uryevick, 751 F. Supp. at 1064.

  There is no doubt that the City has a strong interest in preventing malingering among police officers. The NYPD officers have the benefit of an extremely generous sick leave policy, and some restrictions on the use of that policy are not only acceptable, but necessary to the maintenance of an effective police force. Accordingly, the NYPD's policy requiring an officer to remain in his residence when he is too sick to report for work is rationally related to its interest in preventing abuse of a policy that allows for unlimited paid sick leave.

  The Court's inquiry does not end here: the Court must also determine whether the regulation is connected to the state interest in a "non-arbitrary fashion." This requirement is particularly important where the regulation imposes on an employee's fundamental rights, such as the right to vote or attend religious services.

  The NYPD sick leave provisions are highly restrictive; an officer is confined to his residence for twenty-four hours a day, seven days a week, unless he obtains an out-of-residence pass from the district surgeon.*fn2 Because an officer out sick must obtain a pass to leave his residence for any reason other than a medical appointment, the officer's rights to vote or to attend religious services are highly dependent on the issuance of such a pass.

  Courts considering similar municipal sick-leave policies have reached varying results; however, courts have generally struck down sick leave policies that subject an officer's rights to vote, exercise his or her religion, and freely associate to the unfettered discretion of a government official. See, e.g., Capasso, 198 F. Supp.2d at 461 (holding sick-leave policy requiring firefighters to remain at home in the absence of permission from the Communications Desk Supervisor unconstitutional because the policy "[did] not indicate how the supervisor [made] such a determination"); Uryevick, 751 F. Supp. at 1071 (sick leave policy requiring an officer to remain at home from 9:00 a.m. to 5:00 p.m., unless written permission was granted by the Desk Officer for a "reasonable purpose and time," was unconstitutional because there were no guidelines defining what was "reasonable"); Voorhees, 686 F. Supp. at 395 (sick-leave policy requiring police officer to obtain permission from Police Surgeon or other supervisory officer was unconstitutional because it lacked guidelines for the granting or withholding of such permission); Philadelphia Lodge No. 5 v. City of Philadelphia, 599 F. Supp. 254, 258 (E.D. Pa. 1984) (sick-leave policy requiring a firefighter to obtain permission to leave his residence was unconstitutional because it lacked guidelines for the determination of when such permission would be granted). But see Crain, 920 F.2d 1402, 1409-10 (upholding sick-leave policy requiring officers to remain at home at all times except to receive medical treatment or if they received permission from the police surgeon or chief of police); Serge v. City of Scranton, 610 F. Supp. 1086, 1088 (M.D. Pa. 1985) (upholding sick-leave policy requiring an officer to remain at home unless he obtained approval from a district surgeon); Loughran v. Codd, 432 F. Supp. 259 (E.D.N.Y. 1976) (same).

  Defendants rely on two cases in this Circuit in support of their argument that the NYPD sick leave policy is constitutional. The first, Monahan v. City of New york Dep't of Corrs., 10 F. Supp.2d 420 (S.D.N.Y. 1998), upheld the constitutionality of a sick-leave policy that required an officer out sick to remain in his or her residence for all but four hours each day. The second, Loughran v. Codd, 432 F. Supp. 259 (E.D.N.Y. 1976), upheld the constitutionality of a sick leave policy similar to the policy at issue in this case.

  Despite Defendants' arguments, Monahan has limited relevance to this case. There, Judge Rakoff held that the sick-leave policy at issue allowed officers to leave their homes for up to four hours per day and therefore did not violated their constitutional rights. 10 F. Supp.2d at 425. Judge Rakoff specifically distinguished the policy before him from those held to be unconstitutional in Uryevick and Voorhees, which required officers to remain at home the entire day. Id. Unlike the policy upheld in Monahan, the NYPD sick leave policy requires officers to remain in their residences twenty-four hours per day, seven days per week. Because the policy in Monahan and the policy at issue here are significantly different, the Court rejects Defendants' argument that Monahan is dispositive.

  Neither is Loughran dispositive. Although Loughran upheld a sick-leave policy similar to the one at issue here, subsequent cases in this Circuit have found such policies unconstitutional. See, e.g., Capasso, 198 F. Supp.2d at 461: Uryevick, 751 F. Supp. at 1071; Voorhees, 686 F. Supp. at 395. In Capasso, Judge Connor found facially unconstitutional a sick-leave policy requiring an officer out sick to stay home for twenty-four hours per day unless he or she obtained a pass from the Communications Desk Supervisor. 198 F. Supp.2d at 461. Judge Connor specifically distinguished Monahan, noting that the policy in that case allowed officers to leave their homes for up to four hours each day and was therefore much less restrictive. See id. Noting that other cases in this Circuit have struck down similar policies, Judge Connor denied the defendants' motion for summary judgement, holding that the sick leave policy was facially unconstitutional. Id.; see also Uryevick, 751 F. Supp. at 1071; Voorhees, 686 F. Supp. at 395. In light of the highly restrictive nature of the policy at issue here, the Court finds that the policy more closely resembles those at issue in Capasso, Voorhees, and Uryevick than the policy upheld in Monahan.

  The constitutional concerns raised by subjecting an officer's constitutional rights to the discretion of a district surgeon may be mitigated by the existence of guidelines that restrict such discretion. See id. at 461; Uryevick, 751 F. Supp. at 1071; Voorhees, 686 F. Supp. at 395; Philadelphia Lodge No. 5, 599 F. Supp. at 259. Here, there is a factual dispute as to whether the district surgeon's discretion is subject to specific guidelines. (Compare Crudele Aff at ¶¶ 29-33 (asserting that he was not made aware of any rules or guidelines applicable to the district surgeon's decision to grant or deny a pass and that Dr. Edelman indicated to Crudele that that decision was entirely within Dr. Edelman's discretion) with Edelman Dep. at 81-88 (suggesting that a decision to grant or deny a pass depends on the officer's medical condition, how the officer presents himself or herself to the district surgeon, and the distance from the officer's residence that he or she intends to travel.) Because there is conflicting evidence as to the existence of guidelines, the Court will hold an evidentiary hearing to resolve the issue prior to a definitive ruling on the constitutionality of the NYPD sick leave policy.

 B. Section 1985 Conspiracy Claim and Qualified Immunity of Individual Defendants

  Defendants also move for summary judgment on Plaintiff's Section 1985 claim based on the intracorporate conspiracy doctrine and for dismissal of the claims against the individually-named defendants on the basis of qualified immunity. Because Plaintiff has submitted no response to these sections of Defendants' motion, they are deemed to have abandoned these claims. See See Dineen v. Stramka, 228 F. Supp.2d 447, 454 (S.D.N. Y. 2002); Anti-Monopoly Inc. v. Hasbro, Inc., 958 F. Supp. 895 (S.D.N. Y. 1997): see Taylor v. City of New York, 269 F. Supp.2d 68, 75 (E.D.N.Y 2003). For the reasons set forth below, the Court also finds that these claims must be dismissed on the merits.

  The third cause of action in the complaint alleges that Defendants "conspired to deprive plaintiff of due process and equal protection of the law . . . and thereby violated 42 U.S.C. § 1985." The "intracorporate conspiracy" doctrine provides that there can be no actionable conspiracy where the persons alleged to have engaged in the conspiracy are a corporation and one or more of its agents within the scope of their employment. See Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66, 70-71 (2d Cir. 1976); Agugliaro v. Brooks Bros., 802 F. Supp. 956, 962 (S.D.N.Y. 1992). The doctrine applies not only to private corporations, but also to public entities. See Silverman v. City of New York, 2001 U.S. Dist. LEXIS 22537 (S.D.N.Y. Nov. 19, 2001). Dr. Edelman and Commissioner Safir were acting in the scope of their employment by the NYPD and the City of New York at the time of the events underlying this case. Accordingly, the intracorporate conspiracy doctrine precludes Plaintiff's conspiracy claim against them.

  Defendants additionally argue that the claims against the individually named defendants must be dismissed under the doctrine of qualified immunity. The doctrine of qualified immunity precludes liability for civil damages against government officials "where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 614 (1999) (internal quotation marks and citations omitted). The critical inquiry is whether it was objectively reasonable for a defendant to think that the challenged conduct did not violate the plaintiff's constitutionally established rights. See Behrens v. Pelletier, 516 U.S. 299, 306 (1996). The law in this area is not sufficiently clear to warrant the doctrine of qualified immunity inapplicable. Accordingly, the claims as to the individually named defendants are dismissed.

  III. CONCLUSION

  For the foregoing reasons, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. Plaintiff's Section 1985 claims are dismissed based on the doctrine of intracorporate immunity, and all claims against the individually named defendants are dismissed based on the doctrine of qualified immunity. The Court finds that there is a factual dispute as to the existence of guidelines applicable to a district surgeon's decision whether or not to issue of an out-of-residence pass. Accordingly, Defendants' motion for summary judgement is DENIED as to the constitutionality of the NYPD sick-leave policy.

  SO ORDERED.


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