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Abreu v. Suffolk County Police Dep't

February 23, 2007

JOSE ABREU, PLAINTIFF,
v.
SUFFOLK COUNTY POLICE DEPARTMENT, NEW YORK CITY POLICE DEPARTMENT & THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Plaintiff Jose Abreu ("Abreu"), is a former police officer in the New York City Police Department (the "NYPD") who was subsequently employed as a police officer by the Suffolk County Police Department (the "SCPD"). Abreu brings this action against the SCPD, the NYPD, and the City of New York, pursuant to Title VII, 42 U.S.C. §§ 2000e, et. seq., the New York State Human Rights Law, N.Y. Exec. § 290, et. seq. (hereinafter, "NYSHRL"), and the New York City Human Rights Law, New York City Administrative Code § 8-107 (hereinafter "NYCHRL"), alleging that he was discriminated against by the SCPD based upon his national origin, and was retaliated against by both the SCPD and NYPD because of his Equal Employment Opportunity complaint (hereinafter "EEO complaint") with the NYPD and for other alleged protected activity. Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, defendants' motion is granted in part and denied in part.

I. BACKGROUND

A. THE FACTS

Construed in the light most favorable to plaintiff, the non-moving party, the facts are as follows:

On July 7, 1999, plaintiff was hired as a police officer in the NYPD. (SCPD's 56.1 ¶ 1.)*fn1 Plaintiff was assigned to the 110th Precinct. (Pl. Dep. 16.)

At the time plaintiff took the examination for the police officer position with the NYPD, plaintiff also took an examination to be appointed a police officer with the SCPD. (Pl. Dep. 39.)

1. Plaintiff as a Witness in Internal Affairs Investigation

According to plaintiff, on February 2, 2002, he was off-duty and observed NYPD Lieutenant Lombardi and an NYPD Captain involved in a search of four or five Hispanic individuals at gunpoint. (Pl. Dep. 21-23.) Thereafter, an Internal Affairs Bureau (the "IAB") investigation of that incident took place, in which plaintiff was identified as a witness. (SCPD's 56.1 ¶ 4.) Plaintiff asserts that he did not voluntarily participate in the investigation or identify himself as a witness, but rather was identified as a witness in a report by another police officer who arrived at the scene. (Pl. Dep. 25, 121-122.)

2. Plaintiff's EEO Complaint while Employed with the NYPD

According to plaintiff, prior to this February 2 incident, an EEO complaint was filed on his behalf by Lieutenant Pistere, in which it was alleged that plaintiff had been subjected to racial discrimination. (Pl. Dep. 29-37.) In particular, the complaint related to an alleged incident involving plaintiff and his NYPD Captain in which the Captain engaged in actions that were racial in tone regarding plaintiff's unit assignment and potential transfer. (Pl. Dep. 30-33.) Plaintiff asserts that, after he raised the topic of race with this Captain, he was ordered into a squad car, taken back to the precinct, ordered to stand in the same location as police detainees during arrest, physically bumped, and threatened with the prospect of remaining a patrolman for the remainder of his career. (Pl. Dep. 31-33.)

Plaintiff recalls that, during his meeting with the IAB, both the February 2 incident and his EEO complaint were discussed. (Pl. Dep. 27-29, 37-38.) Plaintiff subsequently applied to become a police officer with the SCPD. (SCPD's 56.1 ¶ 8.)

3. Telephone Calls by the NYPD to the SCPD during Plaintiff's SCPD Application Process

On April 18, 2002, plaintiff spoke with Suffolk County Police Officer Richard Michalski ("Michalski"), who was the officer responsible for processing his application with the SCPD. (Id.) During that conversation, Officer Michalski told plaintiff that he had received an anonymous telephone call from the NYPD in which Officer Michalski was told that plaintiff was involved in an Internal Affairs investigation and that the SCPD should not hire plaintiff. (Id. ¶ 9.)

In particular, the SCPD Application Investigations Unit received two telephone calls from the NYPD during the plaintiff's application process. The first call was placed to police officer Ibanez ("Officer Ibanez") at the Suffolk County Processing Division on April 17, 2002. According to Officer Ibanez, a male caller who did not identify himself stated that the SCPD should "watch out" for plaintiff and that if he got into trouble "he would use the race card." (Eichenholtz Decl., Ex. E.) The second telephone call was placed to Officer Michalski on April 18, 2002. Officer Michalski stated that a male caller, who did not give his name, claimed that he was "on the job" with plaintiff and that plaintiff was involved in a "big investigation" and, in reference to that investigation, the caller said, "IAB has it." (Eichenholtz Decl., Ex. F.)

Officer Michalski subsequently told plaintiff that, because plaintiff was only a witness to the Internal Affairs Investigation and not the subject of any investigation, he could resign from the NYPD and be hired by the SCPD. (SCPD's 56.1 ¶ 10.) Plaintiff was hired by the SCPD on April 22, 2002 and subsequently began his recruit training at the SCPD Academy. (Id. ¶ 11.) As a new hire with the SCPD, plaintiff was placed on an 18-month period of probation. (Id. ¶ 13.)

The NYPD IAB investigated the source of the telephone calls placed to the SCPD concerning plaintiff. (Eichenholtz Decl., Exhibit H.) As an initial matter, the NYPD reviewed the numbers from which the calls originated and found that one call originated from the 110th Precinct (where plaintiff was previously assigned) and the second call originated from the residence of NYPD Lieutenant Lombardi. (Eichenholtz Decl., Ex. G.) On or about May 7, 2002, at an IAB interview, Lieutenant Lombardi admitted to placing the telephone calls to the SCPD. (Eichenholtz Decl., Ex. I, at 192-93.) Lieutenant Lombardi stated that he did not speak with anyone prior to making the telephone calls, that he was not directed by anyone to make the calls, and that they were made "totally independent of anyone within [his] command or in the NYPD." (Id. at 230-31.) Following the IAB investigation, the IAB concluded that the allegation that Lieutenant Lombardi made improper telephone calls to the SCPD was substantiated. (Eichenholtz Decl., Ex. H, at 249.)

5. Plaintiff's Performance at the SCPD Academy

On October 9, 2002, during his training at the SCPD Academy, plaintiff received a Command Discipline because of his failure to report on time to the Academy on September 9, 2002. (SCPD's 56.1 ¶ 14.) Specifically, on that date, plaintiff overslept, he was awakened by a telephone call, and arrived three hours late. (Id.) Although plaintiff does not dispute that he was late that day, he claims that he was treated more severely for that infraction than others in the academy.*fn2 (Pl. Dep. 56-59; Germain Dep. 86-88; Giovannello Dep. 26.) In particular, plaintiff testified that he was punished "several times" for this infraction, including forfeiting one day of accruals, being docked financially, and "a bunch of things." (Pl. Dep. 59.) Plaintiff claims he "had to" sign the Command Discipline. (Pl. Dep. 58.)

Plaintiff received a second Command Discipline on October 2, 2002 in connection with the sale of a firearm by plaintiff to his academy classmate, James Giovanniello, that occurred on September 16, 2002. (SCPD's 56.1 ¶ 16.) According to Giovanniello, he approached plaintiff to purchase the firearm while they were both cadets in the academy. (Giovanniello Dep. 12-13.) Prior to the purchase, Giovanniello asked Officer Conroy, who was the SCPD counselor assigned to both plaintiff and Giovanniello, about the proper procedure for the purchase of plaintiff's firearm. (Id. 14.) Officer Conroy referred Giovanniello to Lieutenant Jablonsky, who was an officer at the SCPD firing range, for approval of the gun sale. (Giovanniello Dep. 14-16, 24, 30.) According to Giovanniello, Lieutenant Jablonsky told Giovanniello that there were no restrictions regarding the sale of the firearm, but that Giovanniello and plaintiff would need to complete required forms. (Giovanniello Dep. 15-17.) Subsequently, plaintiff received a Command Discipline and forfeited two days of accruals. (Pl. Dep. 59-61.) Plaintiff claims that he was treated differently than Giovanniello, who was questioned regarding the transaction, but never disciplined in connection with the firearm sale.*fn3 (Giovanniello Dep. 17.) Plaintiff was subsequently issued a third Command Discipline in connection with his failure to write an Internal Correspondence about the incident when directed to do so. (Pl. Dep. 59-61.)

On September 21, 2002, plaintiff arrived on the scene of a motor vehicle accident involving a friend, who was an off-duty NYPD officer. (SCPD's 56.1 ¶ 18.) According to plaintiff, he arrived at the accident scene in civilian attire and did not appear in an official capacity in connection with his status as an SCPD cadet. Plaintiff testified that, upon arriving at the scene after getting a call from his friend, police cars, an ambulance, and bystanders were present. (Pl. Dep. 64-74.) Plaintiff showed one of the police officers on the scene the employee identification provided by the SCPD and told him he was "on your job" and was a friend of the injured officer. (Id. 74-76.) The officer involved in the accident was arrested for driving while intoxicated. (Eichenholtz Decl., Ex. L.) Plaintiff failed to notify the Academy that he had had contact with a member of the police outside of the Academy. (SCPD's 56.1 ¶ 19.) According to plaintiff, he did not advise the Academy of this incident because it did not involve him in any way and because he had rendered valuable assistance to the officers at the accident scene. (Pl. Dep. 92-93.) In a memorandum concerning the incident, a Suffolk County police officer stated that plaintiff had provided information regarding the location of the injured officer's weapon, which had been displaced during the accident. (Eichenholtz Decl., Ex. L.) The officer noted in his report that "[d]uring my contacts with PPO Abreu I never felt that his actions were obstructionist. Although, [sic] PPO Abreu's intrusive actions were a nuisance, he in fact provided me with some useful information about the case." (Id.)

According to the SCPD, plaintiff was asked to write an Internal Correspondence concerning his role at the accident and submitted three internal reports that contained three different versions. (SCPD's 56.1 ¶¶ 20-21.) Plaintiff disputes this assertion. Specifically, plaintiff claims that he was required to write three internal reports about this incident because Sergeant Germain required him to do so and Sergeant Germain re-wrote a series of questions to which plaintiff was required to provide answers. (Pl. Dep. 93-94.) Sergeant Germain was one of the two sergeants in the recruit training section during the administration of plaintiff's training class and had responsibility for scheduling, discipline, and evaluations. (SCPD's 56.1 ¶¶ 23-24.) Plaintiff asserts that these actions by Sergeant Germain led to three different versions of the reports. (Id.)

According to Sergeant Germain, based upon Abreu's misconduct relating to the Command Disciplines and his actions concerning the motor vehicle accident, he concluded that Abreu's performance was below that required of a recruit and recommended to Lieutenant Gorman, who was the Commanding Officer of the Recruit Training Section, that plaintiff be terminated. (Germain Dep. 18-19, 81, 83.) Sergeant Germain testified that he never knew that plaintiff was involved in any complaints with the NYPD during his employment there. (Germain Dep. 110.)

According to Lieutenant Gorman, he became aware of the Command Disciplines regarding Abreu, spoke to Sergeant Germain, and concurred with Sergeant Germain that plaintiff should be terminated. (Gorman Aff. ¶¶ 4-6.) He then recommended to the Commanding Officer of the Police Academy, Deputy Chief Donna Engel ("Deputy Chief Engel"), that plaintiff be terminated. (Id. ¶ 7; Eichenholtz Decl., Exhibit O.) Lieutenant Gorman asserts that he had no knowledge of any existing problems between plaintiff and the NYPD at the time of his recommendation. (Id. ¶ 8.) Deputy Chief Engel received the termination recommendation from Lieutenant Gorman, agreed with it, and forwarded it so that it would be sent to the Police Commissioner. (Engel Aff. ¶¶ 3-4.) Deputy Chief Engel asserts that she had no knowledge of plaintiff's involvement with the NYPD until after his termination. (Id. ¶ 5.) Plaintiff was terminated from the SCPD on October 11, 2002. (SCPD's 56.1 ¶ 12.)

6. Plaintiff's Conversations with Detective LaVista

Following his termination, plaintiff spoke with SCPD Detective Wanda LaVista ("Detective LaVista") in an effort to meet with the Suffolk County Police Commissioner regarding his termination. Detective LaVista, in addition to working in the Crime Analysis Unit, was a Special Assistant to the Commissioner for community affairs, which included her participation in community events that the Commissioner was unable to attend. (LaVista Dep. 15, 18, 26.) Detective LaVista's initial contact with plaintiff occurred in December 2002 during a telephone call in which plaintiff wished to speak with the Police Commissioner in connection with his employment. (SCPD's 56.1 ¶ 31.) She advised plaintiff during that call that she would have to speak to the Commissioner's Office. (Id. ¶ 32.) Detective LaVista determined that the Commissioner would not speak with plaintiff and subsequently contacted plaintiff and advised him that his request to speak to the Commissioner was denied. (Id. ¶ 33.)

Detective LaVista had another telephone conversation with plaintiff on April 11, 2003, which was taped by plaintiff. (Id. ¶ 34.) On the recording, Detective LaVista states that she had previously been advised that plaintiff had filed an EEO complaint with the NYPD and that she was unaware as to how the SCPD became aware of that information. (Id. ¶ 35; Tape Transcript, at 6-7.) She further stated, apparently in reference to the EEO complaint, "I guess that's what frightened them and they look into it." (Tape Transcript, at 6-7.) More specifically, the taped conversation went as follows:

Abreu: Cause how would they, you know - I don't know how they even knew that I did an EEO in the ...


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