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Cody v. New York State Division of State Police

July 31, 2008

JANET L. CODY, PLAINTIFF,
v.
NEW YORK STATE DIVISION OF STATE POLICE, JAMES KRANIK (SUED IN HIS OFFICIAL AND INDIVIDUAL CAPACITY PURSUANT TO N.Y. EXECUTIVE LAW §§ 290 ET SEQ.), AND JOSEPH CRISPINO (SUED IN HIS OFFICIAL AND INDIVIDUAL CAPACITY PURSUANT TO N.Y. EXECUTIVE LAW §§ 290 ET SEQ.), DEFENDANTS.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the plaintiff, Janet L. Cody, to compel the production of certain police records from defendants, the New York State Division of State Police, James Kranik and Joseph Crispino, including personnel complaints, field training observation reports and performance appraisals of various nonparty probationary troopers, which plaintiff asserts are necessary to demonstrate that she was discriminated against on the basis of her gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. and New York Executive Law §§ 290 et seq. Defendants oppose the production of such records on the ground that, pursuant to New York State Civil Rights Law § 50-1, plaintiff has failed to set forth a "factual predicate" warranting the intrusion of privacy and production of these records. For the following reasons, plaintiff's motion is granted.*fn1

FACTS

Plaintiff, Janet Cody ("plaintiff" or "Cody"), brings this action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000 et seq., and New York Executive Law §§ 290 et seq., against the New York State Division of State Police ("State Police"), the Hawthorne Station Sergeant Commander, James Kranick ("Kranick"), and Line Sergeant Joseph Crispino ("Crispino"), alleging gender-based discriminatory treatment in the terms of her employment.

After serving as a New York City Police Officer for two and one-half years, Cody was hired by the State Police and began training as such at the New York State Police Academy in Albany, New York, on February 14, 2005. (Am. Compl. ¶¶ 20, 22-23, 53.) Upon her completion of the first training phase in Albany, Cody was transferred in August 2005 to Troop L, located in Valley Stream, New York, for field training. (Id. ¶¶ 23-24.) Cody alleges that during her field training, her gender was discussed openly by her superiors, specifically with regard to her ability to perform the same tasks as her male colleagues. (Id. ¶¶ 36-37.) Cody further alleges that similarly situated male troopers were provided more attention than she was during training and that her training consisted of writing tickets for her supervisor's file or driving into the woods during night shifts so that her training officer could take naps. (Id. ¶¶ 44-46.) As an example of the alleged disparate treatment that she received, Cody asserts that she performed a "Police stop" in a similar manner as that of Probationary Trooper Adam Brody ("Brody"), who is male, yet only she was required to stay after her regular tour of duty to practice such basic tactics. (Id. ¶¶ 49, 51-52, 57.) Due to her alleged inadequate performance, Cody's probationary period was extended. (Id. ¶ 59.)

Following field training in Valley Stream, Cody was reassigned to the State Police Station in Hawthorne, New York. (Id. ¶ 69.) While stationed at Hawthorne, Cody alleges that she received disparate treatment in numerous instances, including: (1) being assigned to patrol the parking lot of the Indian Point power plant more frequently than her male colleagues; (2) receiving a reprimand for failing to clear snow off a trooper car in an adequate fashion, even though other male troopers had failed to do so as well; and, (3) being singled out for arriving late due to inclement weather despite male troopers' consistent tardiness. (Id. ¶¶ 70-78, 81-95.) Cody further alleges that she was wrongly reprimanded for both the unsuccessful operation of a law enforcement database and for leaving ten minutes earlier than permitted, while similarly situated male troopers were not disciplined for committing the same acts. (Id. ¶¶ 100-01, 104-07.)

In June 2006, Cody was required to attend a status hearing to determine her personal integrity. (Id. ¶¶ 150, 154.) Despite feeling that she performed in a manner similar to that of her male colleagues, Cody apologized for any wrongdoing on her part. (Id. ¶ 155-56.) On August 7, 2006, while recovering from a medical procedure at home, Cody received a letter from the Bureau of Criminal Investigations that informed her that she would not be promoted to full-time trooper and terminated her employment with the State Police. (Id. ¶¶ 164-66.)

Approximately one month after her termination, Cody learned that other male troopers who had also been terminated were not disciplined as severely as she. (Id. ¶ 175.) Specifically, Troopers Curtis Feggins ("Feggins") and Frederick Ortiz ("Ortiz") were not disciplined for their involvement in separate vehicular accidents involving State Police property. (Id. ¶ 176.) Furthermore, Cody learned that Trooper Aaron Collazo ("Collazo") lied on a police report involving insurance fraud, was arrested and fingerprinted, yet was paid until his last day on the force and given the choice to resign rather than face misdemeanor charges.*fn2 (Id. ¶ 178.)

On September 6, 2007, Cody instituted this action, alleging that she received disparate treatment during her employment with the State Police because of her gender. By motion dated June 18, 2008, plaintiff moves to compel the production of certain State Police records, including any personnel complaints, field training observation reports, and performance appraisals of Troopers Brody, Collazo, Feggins, and Ortiz, all of whom are male and were employed with the State Police during the same time as plaintiff. (Mot. to Compel 1). Defendants oppose the production of such records and assert that they are shielded from discovery by New York State Civil Rights Law § 50-a unless there is some factual predicate to warrant intrusion into the privacy of the troopers' files, which they assert there is not. (Def.'s Opp'n 1).

DISCUSSION

I. Standard of Review

In federal civil rights cases, issues of privilege are governed by federal, not state, law.

See King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988). Under federal law, there is no confidentiality privilege afforded to police records as there is under New York Civil Rights Law § 50-a. See id. In fact, "[i]n the context of a civil rights action asserted against police officers, no federal rule prohibits discovery of police personnel documents." McKenna v. Inc. Vill. of Northport, 06 CV 2895, U.S. Dist. LEXIS 50934, at *21 (E.D.N.Y. Jul. 13, 2007). However, the nonexistence of a federal law in this area does not give license for free and unfettered discovery of police personnel documents. Rather, "[b]ecause no federal rule exists governing the kind[] of privilege[] asserted in [this] case[], . . . the magistrate must balance the interests favoring and opposing confidentiality in the discovery phase of litigation." King, 121 F.R.D. at 187.

To effectively balance such interests, courts rely on a two-prong test, established in King v. Conde, 121 F.R.D. 180 (E.D.N.Y. 1988). Under the first prong, the police bear the burden of making a "substantial threshold showing" that harm is likely to occur as a result of disclosure of the requested documents. Id. at 189. To make such a showing, the police must specify what documents are privileged and why they are so privileged. See id. So that the court may judiciously balance the factors for and against disclosure, the objection must also state, with particularity, "what interests would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be." Id. Furthermore, the objection must be accompanied by an affidavit from a responsible official within the agency who "has personal knowledge of the principle matters to be attested to in the affidavit or declaration." Id. Where "defendants have not satisfied their burden of justifying the application of any privilege, the Court will not shield the requested documents and information from disclosure based on Section 50-a or any other privilege." Melendez v. Greiner, 01 Civ. 07888, 2003 U.S. Dist. LEXIS, at *21 (S.D.N.Y. Oct. 22, 2003); see also McKenna, 2007 U.S. Dist. LEXIS 50934, at *26 (ordering disclosure of police officers' records where no specific harm established and only a generalized objection under Section 50-a offered); Gibbs v. City of New York, 243 F.R.D. 95, 96 (S.D.N.Y. 2007) (ordering disclosure where police failed to specify what documents were privileged and the reasons for the privilege).

Provided that the defendants satisfy the first prong of the King analysis, the Court must then weigh the factors in favor of disclosure versus those against disclosure. See King, 121 F.R.D. at 190-91. Factors in favor of disclosure include the relevance of the documents to the plaintiff's case, their importance to the plaintiff's case, the strength of the plaintiff's case, and the importance of disclosure to the public interest. See id. at 194-95. On the other hand, factors such as (1) threats to a police officer's safety; (2) the invasion of a police officer's privacy; (3) the weakening of law enforcement programs; (4) the chilling of police internal investigative candor; (5) the chilling of citizen complaint candor; and, (6) the relevant policies behind state privacy laws all favor non-disclosure of police documents. See id. at 191-94.

However, even where no substantial harm is shown under the first prong of the analysis, an objection as to the relevance of the documents may prevent their disclosure. See Barrett v. City of New York, 237 F.R.D. 39, 42 (E.D.N.Y. 2006) (ordering relevant requested documents to be produced despite defendants' failure to specifically identify any harm that would result from production); Unger v. Cohen, 125 F.R.D. 67, 70 ( S.D.N.Y. 1989) (holding that where defendants made no substantial threshold showing of specific harm, the court had no choice but to order disclosure "unless defendants' objections on grounds of relevance are sustained"). The purpose of the relevance inquiry is only to "protect irrelevant materials from disclosure: to prevent fishing expeditions, not to safeguard privacy itself." King, 121 F.R.D. at 192. Thus, irrelevant records will not be subject to discovery even where defendants fail to meet the requirements for shielding the documents from disclosure under King. Conversely, if a record is deemed relevant to a plaintiff's case, it must be disclosed by the defendant. See id.; ...


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