The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The defendants City of New York (the "City"), the New York City
Police Department (the "NYPD"), Howard Safir, Commissioner (the
"Commissioner"), Captain Joseph March ("Capt. March"), Lieutenant
Joseph Zerbo ("Lt. Zerbo"), and Sergeant Michele Turner ("Sgt.
Turner") (collectively the "Defendants") have moved under Rule
56, Fed.R.Civ.P., to dismiss the complaint of plaintiff George
Hawkins ("Officer Hawkins" or the "Plaintiff") alleging discrimination in
employment on the basis of color and race. For the reasons set forth, the
motion is granted, and the complaint is dismissed.
Officer Hawkins filed a complaint against the Defendants on
December 1, 1999 alleging: (1) that the Defendants discriminated
against him in employment on the basis of his color and race
(African-American) by giving him a negative evaluation on
December 15, 1998 and by reassigning him from the Narcotics
Division to Transit District ("TD") 12 two months before
Plaintiff was eligible for a promotion to Detective Third Grade;
(2) that the Defendants retaliated against him for "opposing
discrimination," in violation of 42 U.S.C. §§ 2000e, et seq.
("Title VII"), 42 U.S.C. §§ 1981, 1983, the New York State Human
Rights Law ("NYSHRL"), NY Executive Law §§ 290, et seq. and
the New York City Human Rights Law ("CHRL"), NYC Administrative Code §§ 8-101, et seq.; (3) that
Defendants have conspired to deprive him of his civil rights in
violation of 42 U.S.C. § 1985; and, (4) that Capt. March, Sgt.
Turner and Lt. Zerbo committed libel per se and slander against him.
Discovery has proceeded, and the instant motion was heard and
marked fully submitted on February 23, 2005.
The facts are taken from the Defendants' Local Civil Rule 56.1
Statement and the Plaintiff's Local Civil Rule 56.1 Counter
Statement of Facts, and are uncontroverted except as noted.
Officer Hawkins was appointed a Police Officer with the New
York City Transit Police Department ("TPD") on January 21, 1985.
At that time, the New York City Transit Police Department was a
division of the New York City Transit Authority, a municipal
entity, separate and apart from the City of New York and the New
York City Police Department. In April 1995, the TPD was
transferred to and became a part of the NYPD. As a result of the
merger of the TPD and the NYPD, Plaintiff became an employee of
the NYPD in April 1995. After the merger between TPD and the NYPD, Officer Hawkins
continued to work as a transit police officer at TD 12. In the
fall of 1997, Officer Hawkins requested to be reassigned to the
Organized Crime Control Bureau ("OCCB"), which is a division
within the NYPD. Specifically, Plaintiff wanted to be assigned to
the Auto Crime Unit, which is a unit within OCCB. In order to be
assigned to OCCB, precinct officers have to put in a request for
a transfer, which must be approved by their commanding officer.
According to Officer Hawkins, a high recommendation from the
commanding officer is required.
After receiving his commanding officer's recommendation,
Officer Hawkins was accepted to OCCB on October 17, 1997. Due to
the NYPD's concern with drug crime, most applicants accepted to
OCCB were assigned to the Narcotic Divisions. Officer Hawkins was
assigned to the South Bronx Initiative ("SBI"), which is part of
the Bronx Narcotic Division.
Narcotic divisions within the NYPD are responsible for
conducting investigations of known drug prone areas and possible
drug prone areas; conducting undercover "buy and bust" operations
in which an undercover police officer buys drugs from a suspect
and the undercover police officer's team members later arrest or
"bust" the drug seller; procuring and executing arrest warrants;
cultivating confidential informants to learn of possible drug
locations or the identity of drug dealers; processing arrested individuals; and assisting the District Attorney's office in its
prosecutions. If an officer successfully performs the
investigative functions in a narcotics division for eighteen
months, the police officer is automatically promoted to detective
The SBI covers the 40th, 41st, 42nd, and 43rd precincts.
Officer Hawkins was stationed in the 40th precinct. His unit was
comprised of three teams or "modules." Each team was supervised
by a sergeant and was comprised of three to six team members
including at least one undercover police officer. Each sergeant
provided training and supervision to his or her team members,
planned and executed the daily investigations, prepared the
members' evaluations, and reported to a lieutenant. The
lieutenant, in turn, provided indirect supervision of the unit
members and made reports and recommendations to his or her
superior officer, the captain. The captain provided indirect
supervision over various narcotic units within a precinct.
Officer Hawkins was assigned to a team that was supervised by
Sgt. Turner. Sgt. Turner reported to Lt. Zerbo. Lt. Zerbo
reported to Capt. March. Sgt. Turner is an African-American
female. Lt. Zerbo is a Caucasian male.
In April 1998, Sgt. Turner prepared Officer Hawkins's six-month
progress report. He received a "Meets Standards" rating, and it
was noted that while Plaintiff had only been with SBI for a short
time, Sgt. Turner believed Plaintiff would become a good investigator. Officer Hawkins's supervisors testified that even
though they observed that Plaintiff had difficulties grasping the
objectives of SBI that they believed it was partially due to his
inexperience, and that they felt with time and practice
Plaintiff's work performance would improve. The evaluation was
thus written in a way so as not to discourage him.
According to Defendants, Officer Hawkins's performance,
however, did not improve, a fact Officer Hawkins has disputed.
Sgt. Turner repeatedly recommended to her supervisor that
Plaintiff be transferred out of SBI because of his poor work
performance. Lt. Zerbo also spoke to Capt. March about
Plaintiff's poor work performance. Officer Hawkins has disputed
these evaluations and states that he never received any
Sgt. Turner noted that Plaintiff could not correctly complete
"Daily Activity Reports ("DAR's") and DD5's, which were reports
that detailed the events of an investigation for others to
review, and she repeatedly corrected Plaintiff's reports,
oftentimes concerning a mistake about which Officer Hawkins
previously had been counseled. Officer Hawkins has disputed the
notations of Sgt. Turner and states that he was never informed of
Sgt. Turner observed Plaintiff parking too near or too far from
"sets," which were locations where undercover police officers would make drug buys. According to Lt. Zerbo, parking
too close to a "set" would place an undercover in danger or
disrupt a potential drug transaction because the close proximity
of other individuals would often arouse the drug dealer's
suspicions. Whereas, parking too far from a "set" would make it
difficult to maintain "point to point" radio communication, which
could endanger any of the team members. Officer Hawkins asserts
that Lt. Zerbo prepared this evaluation, that Sgt. Turner was
required to sign it and that Sgt. Turner did not make the
Lt. Zerbo had to counsel Officer Hawkins on proper procedures
regarding radio range after Plaintiff's six-month evaluation
because of an incident in which Officer Hawkins and his partner
traveled outside of the radio frequency which delayed the planned
activity for the day for the entire team because the team had to
search for Plaintiff and his partner.
During his counseling sessions with Sgt. Turner, Plaintiff
revealed that he did not know the boundaries of the 40th
precinct, which was an area that he had been working within on a
daily basis. Sgt. Turner noted, on the other hand, that the
investigators that started with Plaintiff knew the boundaries and
street conditions of the 40th precinct.
Lt. Zerbo also determined that Plaintiff could not perform as a
"ghost officer" because of his unfamiliarity with his environs. A ghost officer is an officer who trails the undercover
officer in order to act as a lookout for the undercover and to
notify the remainder of the team if it appears that the
undercover may be in danger.
Sgt. Turner testified that Plaintiff asked too many questions.
Plaintiff's constant questioning suggested to his supervisors
that he was not understanding his function as an investigator in
the Narcotics Division or that he was not paying attention to
what he was being told and taught.
Sgt. Turner also testified that Plaintiff did not conduct the
necessary follow-up to his investigations. Instead of
investigating the complaints of drug locations (also known as
"kites"), Plaintiff would simply deny that drugs were being sold
in the area without actually speaking to anyone in the area or
without conducting any observations of the area to determine if
there was any suspicious activity. Lt. Zerbo also repeatedly
discussed with Plaintiff his failure to properly indicate whether
an investigation was substantiated or unsubstantiated and to
remind Plaintiff that he had to document every investigative step
using official language. Lt. Zerbo testified that unlike his
peers, Plaintiff's reports did not improve over time. Officer
Hawkins has disputed Lt. Zerbo's conclusions and states that Lt.
Zerbo never discussed performance issues with him. According to the Defendants, unlike the other police officers
Plaintiff worked with, Officer Hawkins was also unable to procure
a confidential informant. The Chief of SBI considered it
important that the investigating officers have at least one to
two confidential informants who would provide them with
information. In procuring a confidential informant, it was NYPD
policy that the police officer have a supervisor with him or her.
Officer Hawkins has disputed this conclusion, stating he had two
According to the Defendants, the only confidential informant
Officer Hawkins procured did not provide Officer Hawkins with any
useful information and Officer Hawkins never solicited
information about the confidential informant to determine if the
confidential informant would be a reliable and useful resource, a
statement disputed by Officer Hawkins. In addition, in procuring
the confidential informant, Plaintiff violated NYPD policy
because Plaintiff did not have a supervisor with him when he made
his initial contact with the confidential informant, a fact
disputed by Officer Hawkins.
In 1998, Capt. March received orders from his superior officer
to have an interim evaluation completed for Plaintiff. Capt.
March subsequently ordered Lt. Zerbo to complete the evaluation.
An interim evaluation is a type of evaluation performed between
the required biannual evaluations. An interim evaluation is completed in order to evaluate an officer whose
suitability for an assignment is at issue and it is used to
determine whether the officer should be reassigned from the unit.
According to the Defendants, in or around October 1998, Lt.
Zerbo, based on his own observations of Plaintiff and from his
on-going discussions with Sgt. Turner about Officer Hawkins's
performance, completed an interim evaluation of Officer Hawkins
because Sgt. Turner was away on vacation. Officer Hawkins has
disputed this contention.
According to the Defendants, when Sgt. Turner returned from
vacation, she reviewed the evaluation that Lt. Zerbo completed,
agreed with the comments, which included that Officer Hawkins be
transferred from the division, and signed the evaluation. Sgt.
Turner was not ordered to sign the interim evaluation and in fact
testified that she would not have signed the interim evaluation
unless she agreed with the contents. Officer Hawkins has disputed
these facts and states that Sgt. Turner was ordered to sign the
evaluation which was not the usual procedure.
Capt. March reviewed and concurred with the interim evaluation.
He signed off on the interim evaluation on November 3, 1998. The
interim evaluation reported that Officer Hawkins's performance
was poor, concluding that he did not meet the minimum standards
of performance for the unit. As such, the interim evaluation recommended that Plaintiff be reassigned from the
unit. When Sgt. Turner gave Officer Hawkins the interim
evaluation, she informed Plaintiff that if he did not agree with
the contents that he could appeal the evaluation.
On December 2, 1998, Capt. March recommended to the Commanding
Officer of the Narcotics Division that Plaintiff be reassigned
from the Narcotics Division because of his inability to improve
his poor work performance. Capt. March's recommendation that
Officer Hawkins be reassigned from the Narcotics Division was
endorsed by Capt. March's superior officers on December 9, 1998.
On or about December 28, 1998, Officer Hawkins appealed the
evaluation to Capt. March. In his appeal, Officer Hawkins alleged
that the interim evaluation was not based on facts and disputed
the various criticisms levied against him. In his appeal,
Plaintiff did not claim to be either the victim of discrimination
In his deposition testimony, Officer Hawkins stated he had a
good working relationship with both Sgt. Turner and Lt. Zerbo.
On January 6, 1999, Capt. March denied Officer Hawkins's appeal
and concurred with Sgt. Turner's recommendation to transfer him
and that Plaintiff be reassigned from SBI. Capt. March based his decision on interviews with Plaintiff and
his supervisors in order to resolve Officer Hawkins's appeal.
Capt. March noted that in questioning Plaintiff about the
surroundings of the 40th precinct, Plaintiff could not name
streets and demonstrated an unfamiliarity of the environs and
that Plaintiff's supervisors continued to assert the Plaintiff's
work performance was substandard. Additionally, Capt. March
questioned Sgt. Turner if she agreed with the contents of Officer
Hawkins's interim evaluation, and she indicated that she did
agree with it.
Capt. March informed Officer Hawkins that if he did not agree
with his decision to transfer him, Plaintiff had twenty-four
hours to submit an appeal to the Personnel Officer of OCCB.
Officer Hawkins did ...