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
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
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
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
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
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 ...