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HAWKINS v. CITY OF NEW YORK

August 4, 2005.

GEORGE HAWKINS, Plaintiff,
v.
CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT and HOWARD SAFIR, COMMISSIONER, CAPTAIN JOSEPH MARCH, LIEUTENANT JOSEPH ZERBO, SERGEANT MICHELE TURNER, Defendants.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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.

Prior Proceedings

  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

  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 third grade.

  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 criticism.

  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 any criticism.

  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 reported observation.

  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 confidential informants.

  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 or retaliation.

  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 ...


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