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August 24, 2004.


The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge


This is an action alleging employment discrimination and retaliation in violation of the First and Fourteenth Amendments of the U.S. Constitution and state and local human rights laws. Plaintiff Raymond R. Alexander, III brings the action against his employer, defendant New York City Police Department ("NYPD"), defendant City of New York, and three individual NYPD officers, Sergeant Jorma Torchio, Captain John Bamburg, and Deputy Inspector Samuel Williams. Plaintiff, who is a gay, African American man, alleges that defendants discriminated against him and harassed him on the basis of his gender and sexual orientation. Plaintiff also alleges that defendants retaliated against him for complaining of the discrimination, in violation of his First Amendment rights. Finally, plaintiff alleges that the discrimination and retaliation he suffered was the result of certain policies, practices, or customs of the NYPD, giving rise to municipal liability under 42 U.S.C. § 1983.

The Court observes at the outset that the NYPD, as an organizational subdivision of the City of New York, is not a suable entity. See N.Y. City, N.Y., Charter § 396; Rill v. City of New York, 03 Civ. 0522, 2004 WL 324869, at *1 n. 1 (S.D.N.Y. Feb. 20, 2004); East Coast Novelty Co., Inc. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992). Therefore, plaintiff's § 1983 claims, which the complaint appears to state as lying against the City of New York and the NYPD, may only lie against the former entity. This opinion will treat plaintiff's claims under § 1983 as against only the City of New York. Although the defendants do not move for such relief, it is appropriate for the Court, sua sponte, to dismiss all claims with respect to the NYPD.

  Defendants move for summary judgment. For the reasons set forth, the motion is granted.


  Plaintiff began his employment with the NYPD on August 31, 1998, shortly after which date he entered the New York City Police Academy. As will be explained in more detail, plaintiff contends that he encountered discrimination, harassment, and retaliation from the time he entered the Police Academy, through his first assignment at the 73rd Precinct, and after his transfer from the 73rd Precinct to Police Service Area #3 ("PSA #3"). Plaintiff alleges that throughout this time he was discriminated against and suffered harassment from co-workers and supervisors because he was gay, and because he failed to fit the male stereotype that the NYPD demanded of its officers. Plaintiff also alleges that throughout this time he repeatedly complained of discrimination and harassment, and that each time he complained he suffered retaliation from his superior officers.


  The first incident of which plaintiff complains concerns physical fitness testing at the Academy. As one component of this testing, plaintiff, along with other recruits, was required to run one and a half miles in a certain amount of time. Plaintiff testified in his deposition that he had difficulty keeping up with other recruits and making the required time during these runs. According to plaintiff, on one occasion an Academy instructor by the name of Hector-Johnson, took plaintiff into a room and screamed at him to quit the Academy because of his inability to run. Plaintiff also testified that on another occasion when he had to drop out of the run, an instructor by the name of Lark made him stand in the middle of the gymnasium in front of other recruits while Lark pointed and yelled, "nobody wants to be like Alexander, nobody wants to be a run dropout, you don't want to be like him." (Tr. 19:8)

  Plaintiff testified that this manner of being singled-out continued until November 12, 1998, when plaintiff became unable to breathe during a run with other recruits. Plaintiff was admitted to Cabrini Medical Center for three days as a result of this incident, and was diagnosed with exercise-induced asthma. Plaintiff testified that, during this incident, an Academy instructor by the name of Bailey said that he didn't care if plaintiff couldn't breathe. It should be noted that, according to plaintiff's deposition testimony, Hector-Johnson, Lark, and Bailey, who are not named in the instant action, are the only officers at the Academy who harassed plaintiff during his time there.

  Plaintiff states, in his affidavit submitted on the current motion, that following the November 12 incident he orally requested to be excused from future runs as an accommodation for his asthma. Plaintiff states that he received no response to this request. Thereafter, on December 28, 1999 plaintiff submitted a written request for accommodation. Plaintiff also submitted documentation from medical doctors, which stated that plaintiff suffered from asthma and that plaintiff was generally physically fit but should be excused from running the one and a half mile requirement. Plaintiff states in his affidavit that, while his request for accommodation was pending, he was assigned to limited duty and did not participate in physical training at the academy.

  In January 1999 plaintiff was referred for evaluation to the NYPD Psychological Services Unit ("PSU"). This was the first of several PSU referrals that plaintiff received during the time period relevant to the instant action. Plaintiff alleges that this referral, and all subsequent referrals, were made in retaliation for his complaints of discrimination against him. A January 6, 1999 memorandum from Vincent Gaudio, Commanding Officer of the Recruit Training Section of the NYPD, requests a psychological evaluation of plaintiff based on several incidents between October and December of 1998. The memorandum lists three incidents reported by Academy instructors in which plaintiff "became emotional" and/or began crying when confronted about difficulties he was having in completing the physical fitness requirements of the Academy. Notes from plaintiff's January 1999 PSU evaluation were submitted on the current motion. They indicate that a doctor from PSU spoke with Detective Sierra, apparently of the Police Academy. The notes indicate that Sierra stated that plaintiff "cries whenever confronted," that "instructors complain that [plaintiff] doesn't participate, doesn't get along with peers," and that plaintiff "stubbornly believes that environment should adjust to him." Plaintiff's PSU evaluation apparently concluded that plaintiff was fit to return to duty.

  On February 24, 1999 plaintiff was ordered back to full duty and was therefore required to participate in the running requirement. Plaintiff states that on that day, during the run, he experienced an asthma attack and was again taken to Cabrini Medical Center. Plaintiff states that he became extremely distraught during the attack and began to cry. A February 25, 1999 memorandum from Lieutenant Christopher Delsante, submitted on the current motion, gives a different description of plaintiff's asthma attack. The Delsante memorandum states that, upon the completion of the run on February 24, plaintiff approached his instructor and asked what his time had been on the run. The instructor told plaintiff that he had failed to make the time required by the Academy, but refused to give plaintiff his time and told plaintiff to "fall in" with his company. Plaintiff reportedly asked for his time once again, and was given the same answer. At that point, according to the memorandum, plaintiff fell to the ground, complaining of shortness of breath. The memorandum concludes, "[W]henever [plaintiff] is placed in a stressful situation he fails to properly function. His performance has indicated that he is not capable of carrying out the various police duties on patrol."

  On March 1, 1999, having received no determination from the NYPD regarding his request for accommodation, plaintiff filed a discrimination complaint with the NYPD Office of Equal Employment Opportunity ("OEEO"). The complaint alleged discrimination on the basis of disability, and requested a reasonable accommodation of his asthma.*fn1 On August 13, 1999 the OEEO returned a determination that plaintiff did not qualify for an accommodation under the ADA. According to documentation submitted on the current motion, the request was denied on the recommendation of Chief Surgeon Robert Thomas, who is apparently an NYPD doctor. Thomas determined that "prior to being hired, [plaintiff] had no incidents of asthma nor had he ever been required to exercise," and that "the asthma is caused by fact that [plaintiff] is not physically fit and that if he does get into physical shape, the asthma will not become an issue."

  On April 5, 1999 plaintiff filed a complaint of disability discrimination and harassment with the Equal Employment Opportunity Commission ("EEOC").*fn2 The complaint stated that he had requested reasonable accommodation of his asthma condition, namely, that the time requirement for the Police Academy running requirement be adjusted. The complaint stated that his accommodation had been denied. The complaint also stated that he had been harassed by trainers at the Academy and told that he should quit. Plaintiff's EEOC complaint eventually was dismissed on July 16, 1999.

  Plaintiff alleges that, in retaliation for filing the above complaint, he was prevented from graduating from the Police Academy in a timely manner. Plaintiff stated in his deposition that, shortly before the April 26, 1999 graduation ceremony, he was informed by Lieutenant Johnson of the Police Academy that he would not be graduating. Plaintiff testified that he sought an explanation for the fact that he would not be graduating, and that neither Johnson, nor another supervising officer at the Academy, would provide him with a reason. Plaintiff testified that he was forced to take a vacation day on graduation day, and that he was subsequently assigned to work in a "reproduction room" in the basement of the Police Academy for 30 days. Plaintiff testified that he was not permitted the opportunity to obtain his firearm until May 3, 1999. After obtaining his firearm qualification, plaintiff was reassigned from the reproduction room to the 73rd Precinct.


  Plaintiff began working at the 73rd Precinct on May 18, 1999. His commanding officer at the precinct was Captain McDermott, who is not named as a defendant in the instant action.

  The first instance of harassment alleged to have taken place at the 73rd Precinct occurred on September 4, 1999. On that day, plaintiff was assigned to a patrol car, with three other officers: Richard Zafrani, Michael O'Connell, and Carl Haymer. Zafrani and O'Connell are both white, and Haymer is African American.

  Plaintiff testified in his deposition that, while on patrol, the other officers repeatedly stopped and conducted searches on African American and Puerto Rican men when plaintiff felt that there was no cause to do so. Plaintiff also testified that at one point during the patrol, Zafrani used the loud speaker in the patrol car to call out to an African American woman standing at a bus stop, saying, "Stop smiling and get your teeth fixed." Plaintiff testified that at another point in the patrol, when plaintiff requested that the patrol car pull into Wendy's restaurant so that he could buy dinner, Zafrani told him that he would have to get out of the patrol car two blocks away from the restaurant and walk.

  Plaintiff testified that later in the patrol, while Zafrani was driving, plaintiff asked Zafrani to turn the patrol car around so that suspicious activity that plaintiff observed could be investigated. According to plaintiff, Zafrani said that he would not go back. Plaintiff responded that he would "kick [Zafrani's] ass" if Zafrani did not turn the car around. At the end of the patrol, when plaintiff was leaving the car, he turned to Haymer and stated, "I want these white boys to leave me alone."

  Plaintiff testified in his deposition that another altercation with Zafrani occurred the same day, following the conclusion of the patrol. When the officers concluded the patrol that day they apparently returned not to the 73rd Precinct, but instead to the 70th Precinct, which was located in the geographic area of their patrol. While at the 70th Precinct, plaintiff, Zafrani, and O'Connell were standing outside the precinct bathroom, when, according to plaintiff's testimony, Zafrani said to O'Connell, "Have you seen the famous bathroom?" Plaintiff testified that he understood Zafrani to be making reference to the assault on Abner Louima, which had occurred in the bathroom of the 70th Precinct in 1998. Plaintiff testified that he said nothing to Zafrani in response.

  Shortly after September 4, Captain McDermott received a report of plaintiff's comments to Zafrani in the patrol car. McDermott subsequently conducted an investigation that consisted of interviewing plaintiff, Zafrani, O'Connell, and Haymer. According to plaintiff, during his interview with McDermott he relayed that during the September 4 patrol he had been upset with Zafrani for improperly stopping and searching African American and Hispanic men, because of Zafrani's inappropriate remarks to an African American woman during the patrol, and because of Zafrani's refusal to investigate suspicious activity that plaintiff observed. Plaintiff states that he also admitted to McDermott that he had told Zafrani that he would kick his ass.

  In a memorandum prepared by McDermott dated September 7, 1999, McDermott concludes that "plaintiff was the primary aggressor during the incident." Plaintiff was placed on restricted duty, and his weapon was removed "based on his statements and agitated emotional state during the above interview." According to the memorandum, the OEEO was notified regarding plaintiff's "white boys" comment. The incident was also referred to NYPD Internal Affairs for disciplinary action, and plaintiff ultimately, on March 13, 1999, received a command discipline of three days' suspension in connection with the incident. Zafrani apparently was not disciplined as a result of the incident.

  Following McDermott's investigation, and on McDermott's recommendation, plaintiff was referred to PSU. Plaintiff states that he was referred because of his "white boys" comment. Notes from the PSU psychologist's telephone conversation with McDermott, conducted in the course of plaintiff's evaluation, state that McDermott had observed plaintiff "on the verge of tears" during McDermott's discussion with plaintiff about the Zafrani incident. On September 22, 1999 PSU recommended that plaintiff was fit to return to full duty, including having his firearm reinstated.

  On November 17, 1999 plaintiff was interviewed by Lieutenant Mole, an Internal Affairs investigator, in connection with the September 4 incident. During this interview, plaintiff informed Mole of the comment made by Zafrani at the 70th Precinct. On November 19, 1999 Mole filed a complaint with the OEEO on behalf of plaintiff, in connection with the above-described comment by Zafrani. On November 22, 1999, plaintiff was advised in writing by the OEEO that the matter "did not rise to . . . a violation that would be investigated by this office, and it was referred back to your Commanding Officer for his appropriate attention and corrective action." The record does not reveal whether any subsequent disciplinary action was taken against Zafrani.


  In December 1999 plaintiff requested, and received, a transfer to PSA #3. Plaintiff testified in his deposition that he requested the transfer in order to avoid the harassment that he was experiencing at the 73rd Precinct.

  At PSA #3 plaintiff was assigned to the Second Platoon. Lieutenant Christopher Greaves, who is not named as a defendant in the instant action, was the commanding officer of the Second Platoon. Defendant Torchio, who began at PSA #3 in May 2000, was one of several superior officers in the Second Platoon, and occasionally directly supervised plaintiff. Torchio and other supervisors were apparently, among other responsibilities, charged with overseeing daily assignments that were given to police officers at PSA #3. Two other supervising officers who were responsible for patrol assignments, but who are not named as defendants in this action, are Sergeant Jesse Daniels, and Sergeant Lambert. The commanding officer of PSA #3 at the time that plaintiff transferred to the post was defendant Williams. Williams left PSA #3 in approximately May 2001, at which time defendant Bamburg became the commanding officer of the post.

  Plaintiff alleges that in January 2000 he complained to his union delegate at PSA #3, Mike Scala, that he was being harassed. According to plaintiff, Scala told him that the harassment was occurring because plaintiff's fellow police officers perceived that he was gay. The record contains no evidence that this "complaint" by plaintiff was ever filed or pursued through formal channels. Plaintiff alleges that during his time at PSA #3, Torchio deliberately changed plaintiff's duty assignments in order to give plaintiff less favorable responsibilities than he otherwise would have received. Although plaintiff does not give a timeframe for this conduct, Torchio's testimony as to when he served at PSA #3 establishes that it must have occurred beginning in or around May 2000. Plaintiff testified that Torchio repeatedly removed plaintiff from patrol assignments that were desirable, such as patrol car assignments, and moved him to assignments that were less desirable, such as foot patrol, guarding prisoners in hospitals, or performing security duty at the station house.

  According to plaintiff's deposition testimony, out of the three supervising officers who were responsible for his patrol assignments — Torchio, Daniels, and Lambert — only Torchio harassed plaintiff by changing his assignments. Plaintiff also testified that he received what he considered to be "desirable" patrol assignments approximately once or twice a month, regardless of which supervisors were in charge of assignments. Plaintiff testified that he assumed that Torchio knew that he was gay, and that he believed that Torchio changed his assignments because plaintiff was gay. Torchio testified in his deposition that he was not aware that plaintiff was gay.

  Plaintiff also describes an incident that he characterizes as retaliation against him by Torchio. Plaintiff alleges that on one occasion, he complained to Torchio that the assignments he was receiving were not fair. Plaintiff alleges that following his complaint, Torchio falsely told Williams that plaintiff had stated that he would "get everyone" when his probation ended. Plaintiff testified that he never made such a remark, and that Torchio made the false report in retaliation for plaintiff's complaint. Plaintiff testified that as a result of Torchio's false report plaintiff was referred to PSU. Torchio, in his deposition, confirmed that on one occasion he informed Williams about a remark that plaintiff had made to him when Torchio reprimanded him for not responding to an officer's call for assistance. Torchio testified that plaintiff had told him that "he didn't like the way things were being run," and that "he was going to let it all out." (Tr. 29:15) Torchio stated that he reported the remark because, based on plaintiff's statement that he would "let it all out," he was concerned for the safety of plaintiff and others. The record of psychiatric evaluations submitted by plaintiff on the current motion does not appear to contain any documents pertaining to a referral or evaluation in this time period.

  On November 28, 2000 plaintiff notified a superior officer, Lieutenant Christopher Greaves, that graffiti stating, "Ray is gay," had been placed on plaintiff's locker in the precinct locker room. The same day, Greaves filed an OEEO complaint on behalf of plaintiff, reporting what plaintiff had relayed to him. Greaves also ordered photographs to be taken of the locker, apparently pursuant to advice from OEEO.

  On December 12, 2000 plaintiff was advised in writing by the OEEO that the November 28 complaint had been reviewed and that "the complaint did not require a full investigation pursuant to Title VII of the Civil Rights Act of 1964, or state or local discrimination law." The notification stated that the case was referred back to the commanding officer of PSA #3 for further attention.

  Plaintiff states in his affidavit that some time in December 2000 he was assigned to a sixty-day foot post as punishment for being involved in a minor vehicular accident. It is not clear from his affidavit who was responsible for this assignment. Plaintiff states that he complained to Williams that this assignment was ...

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