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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


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 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.)


  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 ...

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