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