The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
On September 27, 2005, Plaintiff, William Carmody ("Plaintiff" or "Carmody"), filed an Amended Complaint that alleges that while he was a police officer with the New York City Police Department ("NYPD" or sometimes "Department"), the Defendants engaged in several incidents of harassment, retaliation, and conspiracy against him in violation of federal and state civil rights laws.*fn2 Defendants moved to partially dismiss the Amended Complaint for failure to state a claim upon which relief can be granted, and the motion was granted in part. Carmody v. City of New York, 2006 WL 1283125 (S.D.N.Y. May 11, 2006). The Amended Complaint was dismissed in its entirety with regard to seven of the individually-named defendants, the NYPD, and the Civilian Complaint Review Board ("CCRB"). The conspiracy claims (Counts V, VI, VII, and VIII) were also dismissed against all Defendants. Counts I, II, III, IV, IX, X, XI, XII, and XIII are left against the remaining defendants.
Defendants have now moved for summary judgment with regard to the remaining retaliation and hostile work environment claims as well as the New York State common law claims of intentional infliction of emotional distress and intentional interference with employment contract. For the reasons stated below, this motion is GRANTED.
The facts set forth below are undisputed, unless stated otherwise. William Carmody was hired as probationary police officer by the NYPD on July 1, 2002 and attended the Police Academy until January 2003. Declaration of Susan Bernstein in Opp'n to Def. Motion for Summary Judgment ("Bernstein Decl."), Ex. A, Affidavit of William Carmody ("Carmody Aff.") ¶ 2. After graduation from the Police Academy, Carmody was assigned to the 43rd Precinct. Id. Upon arrival at the 43rd Precinct, Plaintiff was assigned to the "Operation Impact" section where he met Police Officer Manual Gomez, a Hispanic Officer who was assigned to the 43rd Precinct at the same time as Plaintiff. Id. ¶ 5-6. The Plaintiff remained there until he was transferred to the 44th Precinct on March 22, 2004. Declaration of Lawrence Profeta in Support of Motion for Summary Judgment ("Profeta Decl.") Ex. 4, Personnel Profile Report. Approximately three months later, on July 19, 2004, Carmody was placed on modified duty. Profeta Decl., Ex. 24.
A. Activities at the 43rd and 44th Precinct
In March 2003, while at the 43rd Precinct, Carmody befriended Gomez and offered to work with him since Gomez was often put on patrol alone. Bernstein Decl., Ex. A, Carmody Aff. ¶ 7; See also Carmody Deposition ("Carmody Dep.") at 16:5-17. Carmody alleges that he witnessed officers at the 43rd Precinct harass Gomez on a daily basis. Bernstein Decl., Ex. A, Carmody Aff. ¶ 9, 11.
On February 3, 2004, Gomez filed a discrimination complaint with the NYPD Office of Equal Employment Opportunity ("EEO") that charged his commanding officer with creating a hostile, retaliatory, and discriminatory environment for him to work in and that much of this environment was as a result of another lawsuit that he, along with the Latino Officer's Association, instituted (and won) against the NYPD in October 2000. Profeta Decl., Ex. 33. Several weeks later, Gomez also filed a complaint with the Equal Employment Opportunity Commission ("EEOC") that alleged retaliatory and discriminatory treatment on the basis of race. Profeta Decl., Ex. 35.
At both of these agencies, Carmody maintains that Gomez named him as a corroborating witness to the retaliatory and hostile work environment Gomez suffered at the NYPD. Carmody also states that he informed individuals at the 43rd Precinct that he would testify for Gomez in his EEO complaint against the NYPD. Bernstein Decl., Ex. A, Carmody Aff. ¶ 13.
Plaintiff alleges in the matter before me -- filed with the EEOC on December 14, 2004 and for which he received a right-to-sue letter on June 22, 2005 and then filed this action on September 27, 2005 -- that from 2003 forward, he was retaliated against and harassed by certain members of the NYPD due to his close association with and support of Officer Gomez. From March 2003 through March 2004, Carmody states that he was questioned about Gomez's off and on duty activities by Lieutenant Marlene Beaman ("Lieutenant Beaman"). Id. ¶ 19-20. Further, and as part of his complaint, he opines that after he reported the misconduct of a fellow police officer to the Internal Affairs Bureau, the harassment increased. Carmody Dep. at 128:12-17. He goes on to say that civilian complaints were erroneously substantiated against him by the CCRB, suggesting that false statements were made or approved by the Executive Director. Bernstein Decl., Ex. A, Carmody Aff. ¶¶ 25-36. Last, Carmody claims that his locker was vandalized three times after he was transferred to the 44th Precinct, yet no action was taken although he reported the damage to his superiors. Carmody Dep. at 84:5-92:20.
B. Termination from the NYPD
Carmody was the subject of investigations by the CCRB*fn3 into civilian complaints filed against him as well as investigations by the Internal Affairs Bureau ("IAB") for failure to comply with the NYPD residency requirement and the requirement to safeguard evidence.
While assigned to the 43rd Precinct, civilians filed five complaints with the CCRB against Officer Carmody, two of which were substantiated.*fn4
1. May 2003 -- Mr. Orlando Clarke stated that Carmody threatened his life ("Clarke Complaint"). Profeta Decl. Ex. 6.
2. June 2003 -- Ms. Patrice Coleman stated that Carmody threatened to punch her son, David Revill, and daughter, Patrice Revill, in the face ("Revill Complaint"). Profeta Decl. Ex. 7.
3. October 2003 -- Ms. Anita Eversley stated that Carmody issued her a summons that was racially motivated ("Eversley Complaint"). Profeta Decl. Ex. 8.
4. October 2003 -- Mr. James Carroll stated that Carmody and his partner, Officer Gomez, harassed him and Carmody issued him an improper summons ("Carroll Complaint"). Profeta Decl. Ex. 9.
5. November 2003 -- Mr. Mark Romero stated that Carmody used excessive force against him during a traffic stop and confiscated three Patrolman Benevolent Association cards that belonged to his brother-in-law ("Romero Complaint"). Profeta Decl. Ex. 10.
On October 5, 2003, the number of civilian complaints in Carmody's file triggered the standard alert issued by IAB in such circumstances:
As of 10/03/2003, 3 incidents are linked to POM WILLIAM J CARMODY that have occurred since 10/03/2002. 3 or more incidents during a 12 month period indicates that the officer may need to be reviewed for a potential problem.
Profeta Decl., Ex. 11. Although Carmody denies that the underlying conduct alleged in the complaints ever happened, he claims that whatever they were, they were all retaliatory in nature -- the Clarke Complaint and the Romero Complaint were referred for investigation. IAB also investigated the Romero Complaint.
The CCRB substantiated the following allegations against Officer Carmody.
Abuse of Authority: Officer William Carmody stopped the car in which Orlando Clarke was an occupant.
Abuse of Authority: Officer William Carmody threatened Orlando Clarke with the use of force.
Abuse of Authority: Officer William Carmody searched the car in which Orlando Clarke was an occupant.
Profeta Decl., Ex. 12. The CCRB found that Carmody did not have reasonable suspicion to stop the car nor did he have probable cause to search it. Id. at 2. Further, since the CCRB found that Mr. Clarke, the complaining witness, was a credible witness, whereas the three officers on the scene offered "inconsistent and implausible statements," the use of force charge was also substantiated. Id. As a result of their finding, Florence Finkle, Executive Director of the CCRB, recommended to the Police Commissioner in a memorandum dated February 2, 2004 that charges be brought against Officer Carmody. Profeta Decl., Ex. 14. On October 20, 2004, the NYPD Department Advocate's Office approved charges against Officer Carmody in connection with the substantiated allegations in the Clarke Complaint. Profeta Decl., Ex. 15. Of the complaints that follow, this is the only charge Carmody claims he was notified about. Bernstein Decl., Carmody Aff. ¶¶ 45, 53.
As stated above, Mark Romero charged that Carmody used excessive force against him and confiscated three Patrolman Benevolent Association cards during a traffic stop. The CCRB substantiated six allegations against Carmody.
Abuse of Authority: Officer William Carmody stopped the car in which Mark Romero was an occupant.
Abuse of Authority: Officer William Carmody issued a summons to Mark Romero.
Abuse of Authority: Officer William Carmody frisked and searched Mark Romero.
Abuse of Authority: Officer William Carmody detained Mark Romero.
Abuse of Authority: Officer William Carmody searched the car in which Mark Romero was an occupant.
Discourtesy: Officer William Carmody spoke rudely to Mark Romero.
Profeta Decl., Ex. 18. The CCRB found that Carmody lacked reasonable suspicion to stop as well as search the vehicle. Id. at 2. In addition, the CCRB concluded that Carmody issued a disorderly conduct summons to Romero in bad faith, thus the subsequent search and detention of Romero was improper. Id. Finally, the discourtesy allegation was substantiated "because of PO Carmody's inconsistent and incredible statements." Id.
Further, in June 2004, the IAB substantiated the portion of Romero's complaint that charged that Carmody seized three PBA cards and failed to voucher those cards, per NYPD procedure. Profeta Decl., Ex. 16. That month, the IAB issued a Class A Command Discipline ("CD") to Carmody for this violation. Profeta Decl., Ex. 17. He does not dispute that he failed to voucher the cards, although emphasizes that he made a common administrative error and that the issuance of a CD for failure to voucher property was a rare step indeed -- generally, it is considered a minor violation in the Department.
2. Bronx County ADA Complaint re: Mishandling of Evidence
Charges were filed against Carmody after the Bronx County Assistant District Attorney John Goward ("ADA Goward") contacted IAB with respect to Carmody's handling of evidence in a public disturbance case. The pertinent facts are as follows. On September 20, 2003, Officers Carmody and Gomez arrested several individuals at the scene of a public disturbance. Profeta Decl., Ex. 19. Carmody provided eight pictures of the incident to ADA Goward, which he stated were developed from a camera given to Gomez by an anonymous citizen on the date of the incident. Id. However, one of the arrested individual's stated to ADA Goward that the camera was his and an unknown officer confiscated it. Id. This allegation spurred ADA Goward to contact IAB for assistance in locating a voucher for the camera and film, or in the alternative, the items themselves. Id.
In October 2004, an IAB investigation found that Carmody lost the camera, negatives, and certain arrest documents. As a result, the following charges were substantiated against him: "Failure to Prepare a Property Clerk Invoice" and "Failure to Safeguard Evidence." Id. Carmody does not dispute these findings and admits to losing the materials, but contends that neither his supervisor nor ADA Goward told him to voucher the evidence. In addition, the investigation report noted that Carmody violated NYPD procedure by his failure to document certain information in his activity log. Carmody denies this charge. For the above claims, Schedule A Command Disciplines were issued to Carmody. Profeta Decl., Ex. 20, Ex. 21. Carmody, however, states he never received any of these CD notices, thus was not aware that CCRB complaints had been substantiated against him. In support, he points out that he did not sign the back of the CD notice as required by Department procedure. His failure to sign the CD form is irrelevant to his notice claim since the resolution of any CCRB complaint (substantiated or unsubstantiated) is forwarded to the Police Advocate's Office as well as to the officer. Further, it stretches credulity to believe that Carmody, after being interviewed by the CCRB in connection with each of these complaints, would forget about them rather than to inquire how they were resolved.
On October 8, 2004, the NYPD Advocate's Office approved two charges against Carmody for failure to properly invoice the property received in connection with the September 2003 incident. Profeta Decl., Ex. 22. Plaintiff denies any knowledge of these charges. Bernstein Decl., Carmody Aff. ¶ 44.
3. Residency Investigation
In November 2003, Cindy Burke, the mother of Carmody's former girlfriend, reported to IAB that Carmody resided at a home he owned at 207 9th Street in Hoboken, New Jersey, rather than at the Bronx residence listed on Carmody's employment record.*fn5 Profeta Decl., Ex. 23.
IAB conducted an investigation whereby they placed Carmody under surveillance at both the Hoboken and Bronx addresses from approximately December 2003 through June 2004. Bernstein Decl., Ex. E, 7:12-14. The result of this surveillance, in pertinent part, is as follows:
* Out of the 22 observations of the Hoboken home, Carmody was observed at the Hoboken location 13 times.
* Carmody was never observed entering or leaving the Bronx apartment.
* No one who lived and/or worked at the Bronx address recognized Carmody.
* With the exception of a doorman who stated that Carmody may have visited the Manhattan apartment, none of the individuals who lived or worked at the Manhattan address recognized Carmody.
* Officer Adam Kreitzberg, the only individual listed on the lease as the resident of the Bronx apartment, stated during his interview that Carmody paid him $200/month to stay on the couch in the apartment. He stayed there approximately twice a month.
* During Carmody's interview, he reported that he spent 7-10 days a month at the Bronx apartment. The balance of the month he spent at his sister's house in Hoboken or with various women whose names he could not recall, with the exception of a woman called "Wendy." (He spent one night with her and stated that she lives somewhere near the 13th precinct.).
* Carmody stated that he kept two duffle bags of clothing, shoes, and toiletries at the Bronx apartment, and the remainder of his things he kept at the Hoboken address.
As a result of the above, the investigating officer recommended that the residency fraud allegation be substantiated and added a charge of making a false and misleading statement. Id. On October 6, 2004, the NYPD Advocate's Office approved yet another charge against Carmody, this one for failure to comply with NYPD residency requirements. Profeta Decl., Ex. 28. The charge was amended on November 22, 2004 to add an allegation that Carmody "knowingly and willfully made a materially false statement or misrepresentation [to an investigating police officer] during an official department interview." Profeta Decl., Ex. 29. Carmody denies making any false statements to the investigators and claims that he was never made aware of these charges.
Carmody maintains the he was and is a resident of New York City and that the NYPD investigative report is not credible. Bernstein Decl., Ex. A, Carmody Aff. ¶ 56. In support of his position, he submits the New York Unemployment Insurance Appeal Board decision that found that he complied with NYPD residency requirements. Bernstein Decl., Ex. D. Further, Carmody points out that the NYPD report fails to indicate the dates and times when he was observed at the Hoboken house. As a result, the report is misleading because it does not note that he was in New Jersey only on scheduled vacation time or on a day off. Id. In addition, Carmody contends that the witness accounts should not be credited because he worked a 6pm -- 2am shift, making it unlikely that any of these individuals would ever have seen him, not to mention recognize him. Carmody Decl. 14:22-23. Last, the house was not in livable condition since he was in the process of renovation for rental purposes. Id. ¶¶ 56-57. While this charge is, in my view, less than airtight, it was clearly initiated by a stranger to, and unconnected with any scheme by the NYPD to retaliate for the Plaintiff's relationship with Gomez.
On February 22, 2005, the NYPD terminated him for misconduct as well as residency fraud.
Pursuant to Federal Rule of Civil Procedure 56, the movant on a motion for summary judgment must establish that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A disputed issue of material fact alone is insufficient to deny a motion for summary judgment, the disputed issue must be "material to the outcome of the litigation," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and must be backed by evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); See also Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir. 1999) ("Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment."). In ruling on a summary judgment motion, the Court resolves all ambiguities and draws all inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).
It is well-known that in employment discrimination cases, where it is necessary to explore an employer's intent and motivation, summary judgment may not be appropriate. See Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). Consequently, affidavits and deposition testimony must be scrutinized for circumstantial evidence, which if believed, would support a finding of discrimination. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Plaintiff must still produce sufficient evidence in support of his claim, so that a rational juror could find in his or her favor. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases.").
Plaintiff brings all claims against the City of New York as well as six individual Defendants, in their individual and official capacities. As a preliminary matter, let me deal with the individual Defendants -- Raymond W. Kelly, Darryl Weir, Arnold S. Wechsler, Kevin Kenney, Florence Finkle, Vanessa Rosen -- and their claim that they are protected by qualified immunity. An official may rely on a qualified immunity defense if the official's conduct did not violate a clearly established constitutional right or it was objectively reasonable for the officer to believe his actions did not violate the law. Anderson v. Creighton, 483 U.S. 635, 641 (1987). A right is clearly established when "the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right. The unlawfulness must be apparent." Connell v. Signoracci, 153 F.3d 74, 79-80 (2d Cir. 1998) (quoting Anderson v. Creighton, 483 US 635, 640 (1987)). An action is objectively reasonable if "officers of reasonable competence could disagree" on the validity of the officer's actions. Malley v. Briggs, 475 U.S. 335, 341 (1986).
The retaliation and hostile work environment claims brought by the Plaintiff allege acts, which if true, clearly violate established law; thus, qualified immunity, a question of law in most instances, is not yet ripe for decision and as it turns out, need not be decided.
This section will discuss the retaliation and hostile work environment claims Plaintiff brings pursuant to Title VII of the Civil Rights Act of 1964. Before proceeding with the substantive allegations of Plaintiff's Title VII claims, I note that since "individuals are not subject to liability under Title VII," Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curium), citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), the Title VII retaliation and hostile work environment claims are dismissed against all Defendants in their individual capacities. The remainder ...