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Howard Henderson v. the City of New York; Police Department of the City of New York

July 20, 2011

HOWARD HENDERSON, PLAINTIFF,
v.
THE CITY OF NEW YORK; POLICE DEPARTMENT OF THE CITY OF NEW YORK; RAYMOND W. KELLY, COMMISSIONER OF POLICE; GEORGE A. GRASSO, FIRST DEPUTY COMMISSIONER OF POLICE; NELDRA M. ZEIGLER, DEPUTY COMMISSIONER, OFFICE OF EQUAL EMPLOYMENT OPPORTUNITY; CHARLES V. CAMPISI, CHIEF, INTERNAL AFFAIRS BUREAU; RAYMOND F. KING, DEPUTY CHIEF, INTERNAL AFFAIRS BUREAU; JAMES DUFFY, DEPUTY INSPECTOR, FIELD SERVICES DIVISION; GEORGE D. O'BRIEN, CAPTAIN, INTERNAL AFFAIRS BUREAU GROUP 27; BRESTER CREECH, LIEUTENANT, INTERNAL AFFAIRS BUREAU GROUP 27; RICHARD M. LEDDA, LIEUTENANT, INTERNAL AFFAIRS BUREAU GROUP 27; LES CATALANO, SERGEANT, INTERNAL AFFAIRS BUREAU GROUP; JOHN A. EGAN, RETIRED SERGEANT, SOUTHEAST QUEENS INITIATIVE, EACH INDIVIDUAL DEFENDANT BEING SUED INDIVIDUALLY AND IN HIS OR HER OFFICIAL CAPACITY, DEFENDANTS.



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

MEMORANDUM AND ORDER

Howard Henderson, who is black, is a former probationary officer with the New York City Police Department ("NYPD"). Claiming that he was the victim of unlawful race discrimination and retaliation, he sues the City of New York ("the City") and a number of NYPD officials.*fn1 His complaint is brought under Title VII of the Civil Rights Act of 1964; 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986; the New York State Human Rights Law ("NYSHRL"); and the New York City Human Rights Law ("NYCHRL"). He also brings claims for intentional infliction of emotional distress and interference with contract under New York common law.

All defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons discussed below, defendants' motion is granted in part and denied in part.

I

Unless otherwise noted, the following facts are undisputed or, if disputed, presented in the light most favorable to Henderson. See Federal Ins. Co. v. American Home Assurance Co., 639 F.3d 557, 566 (2d Cir. 2011).

A. Employment History

1. Benjamin Investigation

In November 2000, Sergeant John Egan reported to the NYPD's Internal Affairs Bureau that Henderson's voice had been heard in monitored phone conversations. The monitored phone belonged to Antonio "Frank" Benjamin, whom Egan believed to be the head of the "Third World Crew," a large-scale narcotics operation. According to Egan, Henderson had provided Benjamin with details concerning the arrest of the latter's girlfriend.

In response to Egan's report, Internal Affairs began an investigation that would eventually span more than a year. A few months into the investigation, one of the witnesses against Henderson-NYPD Detective Winston White-was himself charged with conspiring with the Third World Crew to distribute marijuana. White was later convicted and sentenced to 13 years' imprisonment. See United States v. Wright, et al., No. 01-CR-418 (W.D. Tex. Judgment dated Feb. 2, 2002).

Shortly after White's conviction, Henderson was placed on "modified duty" pending the outcome of the investigation. He was required to turn in his badge and firearm, and was reassigned to the Quartermaster Section, where he performed janitorial duties. On April 9, 2002, he was served with written "charges and specifications" accusing him of (1) "provid[ing] department confidential information to a known narcotic dealer," and (2) "associat[ing] with known narcotic dealers." Decl. of Andrez Carberry, Ex. I. He was given a 30-day suspension, effective immediately. The NYPD apparently did not consider the suspension as ending the matter because Henderson was not removed from modified duty after serving the suspension.

2. Adjudication of Charges

In April 2003, Henderson-a reserve member of the armed services- reported for active duty in Iraq. He served there until May 2004, and returned to the NYPD that September. He received full pay during his tour.

When Henderson came back from Iraq, he returned to modified duty pending a department-level hearing on the charges against him. That hearing took place on March 2, 2005, before Deputy Commissioner John Grappone. On June 15, 2005, Grappone issued a memorandum recommending that Henderson be found not guilty on the grounds (1) that there was no evidence that Benjamin was a drug dealer, and (2) that there was no evidence that Henderson provided Benjamin with any information beyond the circumstances of his girlfriend's arrest, information that was regularly provided to members of the public upon request. The recommendation was approved by NYPD Commissioner Raymond Kelly on July 18, 2005. In addition to dismissing the charges against Henderson, Kelley ordered that the 30 days lost as a result of the suspension be restored to him.

3. Domestic Dispute

Two weeks before the charges against him were dismissed, Henderson called 911 during a domestic dispute with his common-law wife. The responding officer stated that "there was no misconduct noted on the part of Officer Henderson and no change of duty status was required." Carberry Decl., Ex. CCC. Nevertheless, the incident had to be reported to Internal Affairs. On November 30, 2005, the investigating officers issued their report. They found no evidence of misconduct and closed their file.

4. Alcohol Rehabilitation and Retirement

Henderson was restored to full duty on May 4, 2006, and reassigned to the 106th Precinct. Two days later, he was again stripped of his badge and firearm and ordered to attend a 30-day alcohol rehabilitation camp in upstate New York, or risk facing additional charges. Henderson attests that there was no reason for the order, and the defendants have not offered one. Rather than attend the camp, Henderson tendered his resignation effective July 22, 2006.

B. Lawsuits and Complaints of Discrimination

1. Class Action

When Henderson returned from Iraq in 2004, he learned of a class-action discrimination lawsuit against the City based on the NYPD's disciplinary practices. See Latino Officer Ass'n v. City of New York, No. 99-CV-9568 (S.D.N.Y). The plaintiffs in the class action were black and Hispanic officers, and alleged that they had been subjected to more frequent and harsher discipline than their white colleagues. Henderson joined the class action on July 8, 2004. In his claim forms, he asserted that his former precinct (the 113th) was made up of about 90% white officers and about 10% minority officers. He then detailed several instances he claimed constituted race discrimination, including the Internal Affairs investigation into his relationship with Benjamin.

At some point, Henderson sought to opt out of the class action. On January 11, 2005, he was informed that he could no longer opt out without court approval, which he did not seek. On April 28, 2005, the City submitted lengthy objections to Henderson's claims. The parties were, however, able to work out their differences. On December 5, 2005, the City paid Henderson $54,000 in exchange for a release absolving the City and its employees from any and all liability for claims of employment discrimination based on race or national origin, including but not limited to, hostile work environment and retaliation, I have or may have arising from my employment with the New York City Police Department between September 9, 1996 and December 31, 2003, inclusive.

Carberry Decl., Ex. Y.

2. Internal Discrimination Complaint

On January 10, 2005, roughly a year before the settlement, Henderson filed an internal discrimination complaint with the NYPD's Office of Equal Employment Opportunity ("OEEO"). He reiterated the complaints raised in his class-action claim forms, including the investigation into his relationship with Benjamin. In particular, he alleged that the NYPD had failed to inform him of White's conviction and, despite that conviction, refused to drop the charges against him.

An OEEO officer responded to Henderson's complaint on February 17, 2005. The officer informed him that Patrol Guide 205-36 prevented OEEO from investigating his complaint until the charges against him had been resolved. The cited section provides that

When charges and specifications are pending against a member of the service, an allegation of discriminatory treatment raised as a defense to the charges by the respondent member of the service shall vest in the exclusive jurisdiction of the Deputy Commissioner [of] Trials until the charges and specifications have been resolved. After the charges and specifications have been resolved, jurisdiction over the ...


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