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Jamesgriffin v. the City of New York

July 31, 2012


The opinion of the court was delivered by: Dearie, District Judge.



Plaintiff, a 26-year veteran of the New York City Police Department ("NYPD") and former Detective First Grade within the 83rd Precinct Detective Squad, alleges that his supervisors and co-workers forced his resignation after he complained to the NYPD's Internal Affairs Bureau ("IAB") that a fellow detective had attempted to pressure him to falsely accept blame for a botched homicide investigation. Suing under 42 U.S.C. § 1983 ("Section 1983"), plaintiff claims that the retaliation he faced as a result of reporting his colleague's misconduct violated his right to free speech as guaranteed by the First Amendment and his rights to procedural and substantive due process under the Fifth and Fourteenth Amendments. Additionally, plaintiff alleges that defendants conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985 ("Section 1985") and asserts claims for intentional infliction of emotional distress and "whistleblower" retaliation under New York State law.

Defendants move to dismiss plaintiff's Amended Complaint ("Compl." or "Complaint") pursuant to Federal Rule of Civil Procedure 12(b)(6). In an Order dated March 30, 2012, the Court held that, unless and until the evidence shows otherwise, plaintiff may prosecute his Section 1983 claim for First Amendment retaliation against the City of New York and the individually named defendants because plaintiff's complaint to IAB plainly qualifies as protected speech. The Court, however, granted defendants' motion with respect to plaintiff's due process, Section 1985, and state law claims. This Memorandum explains the Court's decision.


The pertinent allegations follow. Plaintiff, now 50 years old, joined the NYPD as an entry-level officer in 1983. In October 2005, he was promoted to Detective First Grade and placed on the C Team of detectives in the 83rd Precinct in Bushwick, Brooklyn. Prior to the events giving rise to plaintiff's claims, plaintiff had received "nothing but praise from his colleagues and supervisors, and numerous citations and awards for his performance." Compl. ¶ 15. A. Underlying Basis for Retaliation

The harms allegedly suffered by plaintiff arise from a botched murder investigation. On October 22, 2005, Detective First Grade Michael O'Keefe ("O'Keefe") was assigned to interview a stabbing victim being treated at Elmhurst Hospital. Via telephone, a nurse informed O'Keefe that the victim was incapacitated post-surgery and would be unable to speak with anyone until the next day. Standard NYPD operating procedures required O'Keefe to visit the hospital to interview the treating and operating physicians and nurses, as well as search for witnesses and other evidence. O'Keefe, whose shift was ending, did not do so, did not instruct anyone else to do so, and made no further attempt to interview the victim, who died "shortly thereafter." Subsequently, the NYPD's Investigation Unit ("IU") scheduled a hearing to decide whether to formally discipline O'Keefe. Compl. ¶¶ 16-19.

On November 10, 2005, while plaintiff was patrolling with colleague Detective Robert Wagner ("Wagner"), Detective Third Grade Kevin McCarthy ("McCarthy") called to ask plaintiff to contact IU and accept blame for O'Keefe's mistake. McCarthy added that if plaintiff refused, McCarthy and other detectives would falsely inform IU that the failed investigation was plaintiff's fault. Compl. ¶¶ 21-22. McCarthy and plaintiff "had never worked on that case together and thus had no reason to 'confer' about it." Compl. ¶ 35. Because plaintiff had previously reprimanded McCarthy for being disrespectful to colleagues and had encouraged others to challenge McCarthy for his elected union position at the Detective Endowment Association ("the union"), plaintiff and McCarthy had a "negative history." Compl. ¶ 21. Plaintiff shared the contents of the entire conversation with Wagner who "admit[ed] his disgust with McCarthy's request/threat." Compl. ¶ 23.

Plaintiff decided to bring McCarthy's threats to IU's attention. When no one from IU reached out to him, on November 16, 2005, plaintiff "exercised his First Amendment rights by contacting . . . [IAB] to report the fact that McCarthy had instructed plaintiff to lie during an official investigation." Compl. ¶ 25.

On December 7, 2005, plaintiff was advised by a fellow detective that all of plaintiff's colleagues in the 83rd Precinct were discussing a rumor that McCarthy was the subject of an IAB report. Plaintiff responded that the rumor was true and that it was he who had contacted IAB. Compl. ¶ 26. The following day, December 8, 2005, Wagner called plaintiff and castigated him for reporting McCarthy to IAB. Although McCarthy's "conduct had been wrong," Wagner said, "plaintiff was wrong to contact [IAB], and . . . Wagner could not 'defend [plaintiff] in any way now.'" Compl. ¶ 27.

The alleged retaliation began shortly after word got out that it was plaintiff who had reported McCarthy's corrupt overtures to IAB and continued until plaintiff's constructive termination from the NYPD on July 25, 2009. Compl. ¶¶ 28, 67.

B. Retaliation 1. 83rd Precinct: December 2005-March 2006

On December 9, 2005, plaintiff found the word "RAT" written in permanent marker in large letters on his locker, and the mattress he was known to use in the precinct dormitory was "flipped over and vandalized." Compl. ¶¶ 29-30. Later that day, while pacing in front of many of plaintiff's colleagues, including one of the unit's supervisors, a fellow detective repeatedly called plaintiff a "rat" and a "coward," and then approached plaintiff in an aggressive manner. After being pulled away by colleagues, the detective stated that he would "clock [plaintiff's] whistle" and "write that '[plaintiff] is a rat' on every chalkboard in the building." Compl. ¶ 31.

The following day, December 10, 2005, none of plaintiff's colleagues would speak or make eye contact with plaintiff, including the officer with whom plaintiff had frequently worked and was assigned on that day to conduct investigations. Although plaintiff informed his supervisor that his partner was unwilling to work with him and asked whether another detective could be assigned, plaintiff's supervisor "did nothing to fix the situation." Because "all investigations must be conducted with at least two . . . detectives . . . plaintiff was prevented from conducting investigations" on that day. Additionally, plaintiff's partner "dissuaded" plaintiff from attending the Precinct's Christmas party and refused to "refund Plaintiff's money" for tickets already bought. When plaintiff's mother passed away two weeks later, none of plaintiff's colleagues sent flowers-as was tradition-and few attended the wake. One detective explicitly told plaintiff that he did not attend "solely due to plaintiff having called internal affairs." Compl. ¶¶ 32-34.

Throughout December 2005, IAB investigated plaintiff's allegations against McCarthy; however, "[a]ll of the material witnesses failed to cooperate with the investigation," including Wagner who told the investigators that he "did not hear any statements made by . . . McCarthy," and McCarthy himself, who stated that he had only "called plaintiff . . . 'to confer with [him] about the case' and that he never instructed plaintiff to lie." The IAB dismissed the allegations made by plaintiff against McCarthy as "unsubstantiated." Compl. ¶ 35.

In early January, after plaintiff's return to the office following vacation, plaintiff was informed by one of his supervisors that he would be transferred from the C Team to the E Team because the "C Team detectives held a lot of animosity towards plaintiff, and that in the department's opinion . . . [the transfer was] the best solution to prevent further problems . . . ." Compl. ¶ 36. Plaintiff noticed that the word "RAT" had not yet been removed from his locker and since had been written in multiple other places on plaintiff's locker. Compl. ¶ 37. As before his vacation, "none of the other detectives would either speak to plaintiff or make eye contact with him," which "made it impossible for plaintiff to conduct investigations and thus satisfactorily do his job." Although plaintiff again complained to his superior, the superior "did not offer any solution." Compl. ¶ 38.

On January 16, 2006, Detective Joseph Tallarine ("Tallarine") began working on the C Team and told plaintiff that although he had heard of the IAB report, he "would not have a problem working with plaintiff in the future." Based on Tallarine's willingness to work with plaintiff, plaintiff's supervisor moved him back to the C Team. The partnership, however, did not last long. Later that same day, Tallarine told plaintiff that he had noticed other C Team members giving Tallarine "dirty looks," ostensibly for agreeing to work with plaintiff. Compl. ¶ 39. The following day, plaintiff "witnessed and overheard" a conversation between Tallarine and Detective Anthony Cardinale ("Cardinale"), a union board member, during which Cardinale told Tallarine that "we want [plaintiff] to leave, he's a rat," and "we don't want you to talk to him, work with him, nothing." Plaintiff then approached Cardinale "in an effort to explain to Cardinale plaintiff's version of the events." Cardinale responded that "everyone at [the union] thought of plaintiff as a rat, that no one in the entire NYPD was currently talking to plaintiff or would ever talk to him again in the future . . . that everyone wanted plaintiff to just resign from his position with NYPD . . . [and] that these events would forever affect plaintiff's family." Compl. ¶¶ 40-41. Although Tallarine and plaintiff continued to work together, "Tallarine's attitude towards plaintiff became hostile and the two generally did not communicate unless it was absolutely necessary." Compl. ¶ 42.

2. Cold Case Squad: March 2006-October 2007

On March 2, 2006, plaintiff was transferred to the Cold Case Squad and placed under the command of defendant, Deputy Chief Joseph Reznick ("Reznick"). Prior to plaintiff's arrival, his former colleagues from the 83rd Precinct allegedly contacted his new unit, including Reznick, to inform them of the IAB complaint and that plaintiff was a rat and to encourage them not to work with him. The advanced warning worked, as "none of plaintiff's new colleagues," except for Detective Mark Valencia ("Valencia"), would agree to work with plaintiff. Compl. ¶ 43. Within about a year, however, Valencia had "declared his refusal to work with plaintiff because plaintiff was a 'rat'" and left a note on plaintiff's desk telling him so. After Valencia rejected plaintiff, Reznick reassigned plaintiff to work with another detective, but from a different precinct located far away in the Bronx, which "greatly complicated plaintiff's ability to complete the essential functions of his job," as one or both detectives had to commute long distances to work together. Compl. ¶ 47.

From the beginning of plaintiff's time on the Cold Case Squad until his transfer around October 2007, Reznick engaged in a string of allegedly retaliatory actions, including (1) assigning plaintiff a "significantly greater number of cases" than others, Compl. ¶ 44, all of which plaintiff would later be told by a different supervisor were "practically unsolvable and designed to waste plaintiff's time," Compl. ¶ 54; (2) denying plaintiff's request to attend two relevant training courses while sending other detectives to one of those courses "without explanation," Compl. ¶¶ 45-46; (3) denying, or ordering others to deny, on at least four occasions, plaintiff the ability to work overtime and be compensated in cash, although this was customary and provided to plaintiff's partners on the exact same assignments, Compl. ¶¶ 48, 50-52; (4) denying, or ordering others to deny, plaintiff's request for reimbursement of expenditures made during an investigation, Compl. ¶ 53; and (5) blocking plaintiff's request to transfer to the 105th Precinct by "submit[ing] an inter-office memorandum to the Chief of Detectives . . . order[ing] that plaintiff not be granted his request." Compl. ¶ 57. Reznick instead transferred him to the 111th Precinct, although "there was an opening and a need for a detective possessing plaintiff's credentials" at the 105th Precinct. Compl. ¶¶ 55-57.

Among the individuals allegedly instructed by Reznick to deny plaintiff cash overtime pay or otherwise treat plaintiff differently from his peers, was defendant Captain Sean Crowley ("Crowley"). On May 2, 2007, during a meeting presided over by Crowley at which all Cold Case Squad members were present, Crowley stated that Reznick had ordered him "not to authorize any cash overtime" for plaintiff for May 2007, informed plaintiff and the others that "Reznick had ordered Crowley to 'shut [plaintiff] down,'" and dared plaintiff to put "Crowley in [this] law suit." Compl. ¶ 48. Crowley also denied plaintiff's request for overtime while granting it to his partners for the same work on the same assignments on at least two other occasions. Compl. ¶¶ 51-52.

Plaintiff filed a grievance with the union citing "numerous examples of times that Reznick, as carried out by Crowley, singled out plaintiff treating him disparately from his similarly-situated colleagues." Compl. ¶ 49. In addition, plaintiff filed a grievance with the union based upon Reznick's efforts to deny him a transfer to the 105th Precinct. Compl. ¶¶ 55-58.

3. 111th and 105th Precincts: October 2007-July 2009

Around March 2008, while plaintiff was working at the 111th Precinct, he received by mail a report regarding a robbery that had "some alleged connection to the 111th Precinct" filed by an anonymous member of the 83rd Precinct, plaintiff's original Precinct, which included "several derogatory remarks about, and threats toward plaintiff." Over the ensuing weeks, plaintiff received "several more" such missives, "all mentioning plaintiff by name [and] . . . all containing relatively similar degrading and threatening content." Plaintiff filed a grievance with the union based upon these incidents. Compl. ¶ 59.

Shortly thereafter, plaintiff was finally transferred to the 105th Precinct as he had originally requested, where he fared no better. Although no incidents are alleged between March and December 2008, in January 2009, the word "RAT" was written on plaintiff's hole puncher and in May 2009, plaintiff's locker was vandalized and pictures were deleted from his personal camera. Although plaintiff turned over the camera to IAB in an attempt to identify the culprit, they were unable to do so. Compl. ¶¶ 60-62.

Plaintiff's supervisor at the 105th Precinct, defendant Lieutenant Michael Miltenberg ("Miltenberg"), also allegedly engaged in retaliatory conduct. In May 2009, Miltenberg "intentionally failed to submit" official paperwork approving plaintiff's "very standard request . . . approved for other detectives as a matter of course" to work one week of his vacation. Compl. ¶

63. On or around July 9, 2009, after plaintiff worked approved overtime hours on a different matter, Miltenberg "made calls to ensure that plaintiff's request [for cash overtime compensation] was pulled and thus not approved." Compl. ¶ 64. Plaintiff filed a grievance with the union regarding Miltenberg's actions. Compl. ¶ 65. Lastly, at a staff meeting held shortly before plaintiff's constructive termination, Miltenberg "stared directly at plaintiff and stated that 'there's a rat in here, not someone who retired or transferred but sitting right here in this room.'" Plaintiff alleges that "[a]s a direct result of Miltenberg's actions, all of plaintiff's colleagues refused to work and/or speak to plaintiff." Compl. ¶ 66.

Soon after this meeting, on July 25, 2009, plaintiff decided he had had enough and left ...

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