The opinion of the court was delivered by: Ramon E. Reyes, Jr., U.S.M.J.:
Plaintiff Pamela Walker ("Walker") brought this action against the City of New York ("City"), Police Department City of New York ("NYPD"), New York City Police Pension Fund ("Fund"), Police Commissioner Raymond Kelly ("Kelly"), Deputy Inspector Timothy Donovan ("Donovan"), Captain John Wallace ("Wallace"), Lieutenant John Dietz ("Dietz"), and Edward J. Allocco ("Allocco"),*fn1 as the Commissioner of the Board of Trustees of the New York City Police Pension Fund (the "Board") (collectively, "Defendants").*fn2 Walker contends that Defendants discriminated against her based on her race, gender, and disability in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("Section 1983") and various state laws. Walker's claims arise from an accidental shooting in which she injured her right hand, and the resulting denial of her application for accident disability retirement ("ADR") from the NYPD.
Before the Court is Defendants' motion for summary judgment.*fn3 For the reasons detailed herein, Defendants' motion for summary judgment is granted in part and denied in part.
Walker, an African-American woman, served as a New York City Police
Officer from January 23, 1988 until her retirement in the summer of
2004. (Defendants' Local Rule 56.1 Statement of Undisputed Facts
("Def. 56.1 Stmnt"), dated Jan. 20, 2010, ¶ 1; Affidavit of Plaintiff
Pamela Walker ("Walker Aff."), dated March 12, 2010, ¶ 1.)*fn4
On August 6, 2002, Walker was shot and permanently injured
her in right hand during a weapon inspection at the Midtown Precinct
South Station. (Def. 56.1 Stmnt ¶ 1; Walker Aff. ¶¶ 7, 49.)
According to Walker, her injury was not self-inflicted, but was caused by Dietz, her Caucasian male supervisor. (Walker Aff. ¶¶ 46-49.) Walker contends that on the day in question Dietz ordered her to the "Planning Room," a civilian office without a firearm safety station, for her annual uniform inspection, which included inspection of her NYPD-issued firearms. (Walker Aff. ¶ 10.) At Dietz's request, Walker placed all three of her holstered weapons on the desk in front of Dietz despite thinking that the order was "highly unusual and inconsistent with Department policy" since the firearms were "'loaded' for the street with 'live ammunition.'"
(Walker Aff. ¶¶ 11-12.) Walker asked Dietz if she should "Draw and Present"*fn5 her weapon for inspection, but Dietz told her it was not necessary. (Walker Aff. ¶ 21.) Dietz inspected the weapon, and as he was handing it back to her, "accidentally depressed the trigger causing the 'loaded' firearm to discharge." (Walker Aff. ¶¶ 46-49.) The bullet passed through Walker's right, dominant hand. (Walker Aff. ¶¶ 49, 53; Def. 56.1 Stmnt ¶ 1.) Walker also contends that Dietz then ran out of the room without rendering aid. (Walker ¶¶ 49-50.)
Wallace, who was Walker's captain at the time, issued a report on February 3, 2003, which found that the injury was self-inflicted. (Declaration of Susan Penny Bernstein in Opposition to Summary Judgment ("Bernstein Decl."), dated March 12, 2010, Exh. 4.) Wallace's report indicates that both Dietz and Walker were interviewed regarding the incident. (Bernstein Decl., Exh. 4.) He reports that Walker said she handled the weapon the entire time before discharge, (Bernstein Decl., Exh. 4at 3), a statement Walker says she never made, (Walker Aff. ¶¶ 77-78). Contrary to Wallace's conclusions, in a sworn affidavit, Alfred Medina, retired NYPD Sergeant and active firearms instructor, explained that Walker "could not have accidentally shot her own dominant hand" when unholstering the weapon based on the way police officers are trained to draw a weapon from its holster.*fn6 (Affidavit of Alfred Medina ("Medina Aff."), dated April 9, 2006, at 3.)
On September 26, 2003, Walker applied for ADR based upon her injury. (Walker Aff. ¶ 84; Def. 56.1 Stmnt ¶ 2.) The Medical Board of the Fund ("Medical Board") reviewed Walker's medical records, examined and interviewed her, and eventually concluded that she was disabled from full duty as a police officer as a result of the August 6 incident. (Def. 56.1 Stmnt ¶ 2.) Accordingly, the Medical Board recommended that Walker's application for ADR benefits be granted. (Def. 56.1 Stmnt ¶ 2.)
Despite the Medical Board's recommendation, the Board ultimately denied Walker's ADR application. (Def. 56.1 Stmnt ¶ 3; Bernstein Decl., Exh. 23.) That decision was apparently predicated on Wallace's report, which found that the "discharge occurred as a direct result of [Walker's] inability to maintain control of the weapon." (Def. 56.1 Stmnt ¶ 3; Bernstein Decl., Exh. 23 at 16 (quoting Wallace's report).) Because of a tie vote (6/6), Walker was instead granted ordinary disability retirement ("ODR").*fn7 (Def. 56.1 Stmnt ¶ 3.)
Walker filed this action on March 9, 2005. In her Complaint, Walker asserts thirteen separate "Counts," many of which contain multiple causes of action under federal and state law.*fn8
Through two separate stipulations, Walker has withdrawn all but two of her federal claims. (See Docket Nos. 28 and 43.) Plaintiff and Defendants agree that the only remaining federal claims are contained in Counts III and IV. (Docket No. 43.)*fn9
Although the parties agree that Counts III and IV remain for adjudication, it is not clear to the Court precisely what those Counts specifically allege, or at least what the parties contend they specifically allege. Perhaps this is due to the fact that (1) the Complaint and stipulations withdrawing some of the claims are confusingly drafted; and/or (2) Counts III and IV each appear to contain multiple causes of action which are improperly denominated; and/or (3) the parties' summary judgment briefs refer to claims that appear to have been withdrawn. For example, Count III is entitled "Race, Color, Gender and Disability Discrimination in Violation of The Civil Rights Act of 1871, 42 U.S.C. § 1983 Conspiracy." By stipulation, Walker withdrew her constitutional conspiracy claims, specifically stated as: "Counts III through VI of the Complaint, which allege conspiracy under 42 U.S.C. § 1985." (Docket No. 43 ¶ 1.) The stipulation later clarifies "that by withdrawing Counts III, IV, V and VI which allege Conspiracy, as well as claims under the Due Process Clause, she will continue to assert the following claims only: race, gender and disability discrimination under 42 U.S.C. § 1983." (Docket No. 43 ¶ 5.) Despite this, however, the parties devote substantial portions of the memoranda of law arguing the validity of Walker's constitutional conspiracy claims. (Defendants' Memorandum of Law in Support of their Motion for Summary Judgment ("Def. Mem."), dated Jan. 20, 2010, at 5-6; Plaintiff's Memorandum in Opposition of Defendants' Motion for Partial Summary Judgment ("Pl. Mem."), dated March 12, 2010, at 11-18.)
Nevertheless, after carefully parsing through the Complaint, the stipulations, and the parties' memoranda of law, it appears that the only claims that remain for adjudication are whether Walker was subjected to race, gender or disability discrimination in violation of 42 U.S.C. § 1983. (Docket No. 43, ¶ 5 ("Plaintiff agrees that by withdrawing Counts III, IV, V and VI which allege Conspiracy, as well as claims under the Due Process Clause, she will continue to assert the following claims only: race, gender and disability discrimination under 42 U.S.C. § 1983."). Factually, Walker's claims boil down to: (1) whether Defendants Kelly, Donovan, Wallace and Dietz deprived her of a thorough, true and accurate investigation into her shooting based on her race, gender, or disability (Count III); and (2) whether Allocco (as Commissioner of the Board) treated her differently than other similarly situated officers who applied for ADR based on her race, gender, or disability (Count IV).*fn10