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Whitehead v. The City of New York

United States District Court, E.D. New York

October 15, 2012

CHRISTOPHER WHITEHEAD, Plaintiff,
v.
THE CITY OF NEW YORK, et al., Defendants

Page 137

For Christopher Whitehead, Plaintiff: Matthew Brian Weinick, Leeds Brown Law, P.C., Carle Place, NY.

For City of New York, City of New York Police Department, Michael Marino, in his personal and individual capacities, Defendants: Kuuku Angate Minnah-Donkoh, LEAD ATTORNEY, NYC Law Department, New York, NY.

OPINION

Page 138

I. Leo Glasser, Senior United States District Judge.

MEMORANDUM AND ORDER

Plaintiff Christopher Whitehead (" Whitehead" or " plaintiff" ), a current employee of the City of New York Police Department (" NYPD" ), brings this action against Michael Marino (" Marino" ), a current employee of the NYPD, the City of New York, and the NYPD (collectively " defendants" ), alleging unconstitutional retaliation in violation of 42 U.S.C. § 1983 (" § 1983" ) and various state laws.

Currently before the Court is defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is hereby GRANTED.

I. FACTS & PROCEDURAL HISTORY

The following facts are taken from Whitehead's complaint and are accepted as true for purposes of this motion. Whitehead is currently a police officer in the NYPD. He has been employed as a police officer since 1998 and has been assigned to the 75th Precinct in the East New York section of Brooklyn since 2000. Complaint dated Feb. 28, 2012 ¶ ¶ 4, 11-12 (" Compl." ) (Dkt. No. 1). On or about September 2002, Marino, then an Inspector with the NYPD, became the Commanding Officer (" CO" ) of the 75th Precinct. Id. ¶ 14. Within months of becoming the CO of the 75th Precinct, Marino instituted an allegedly illegal quota policy that required each officer assigned to the 75th Precinct to issue ten tickets and make one arrest each month or face a low performance evaluation score.Id. ¶ 15.

While Whitehead had previously received competent or highly competent ratings, in his 2003 performance evaluation, the first under Marino's quota policy, Whitehead received a below competent rating because he did not achieve the required number of tickets and arrests.Id. ¶ ¶ 13, 16. On or about January 2004, Marino called Whitehead into his office for a meeting regarding Whitehead's failure to satisfy the quota policy. Whitehead explained that he did not have sufficient opportunities to issue tickets or make arrests because he was rarely assigned patrol duty. Marino replied that he would put Whitehead on Level II Performance Monitoring or terminate Whitehead's employment if he did not comply with the quota policy.Id. ¶ 17.[1] Marino placed Whitehead

Page 139

on Level II Performance Monitoring shortly thereafter. Id. ¶ 19.

A few months after being placed on performance monitoring, Whitehead was ordered to Police Headquarters where he was told that he would be closely monitored and that if his performance evaluations did not improve within 18 months, then he would be placed on Level III Performance Monitoring, known as dismissal probation. Id. ¶ 20. While on performance monitoring, Whitehead vocalized his opposition to the quota system to Marino and several of his supervisors. Id. ¶ 25. Because Whitehead did not satisfy the quota policy, he received below competent ratings for calendar years 2004 and 2005 and remained on Level II Performance Monitoring. Id. ¶ ¶ 23, 31.

On or about 2005, the Patrolmen's Benevolent Association of the City of New York (" PBA" ) filed a grievance under its collective bargaining agreement asserting that the quota policy violated New York Labor Law § 215-a[2]. Id. ¶ 26. In preparation for the arbitration hearing pursuant to the collective bargaining agreement, Whitehead met with the PBA and agreed to testify but, ultimately, was not called as a witness. However, Marino and other supervisors within the 75th Precinct were allegedly aware of Whitehead's cooperation. Id. ¶ 27. The arbitration hearing was held on June 16, 2005, and the arbitrator determined, in a January 14, 2006 decision, that the quota policy violated Labor Law § 215-a, and permitted officers who felt that they were unfairly penalized under the policy to be reevaluated without reference to the policy. Id. ¶ ¶ 28, 33. Whitehead filed a timely appeal of his 2005 evaluation to Inspector David Barrere, then-CO of the 75th Precinct, who denied the appeal without explanation. Whitehead was informed that he could further appeal his evaluation at the borough level; however, Marino had been promoted to Deputy Chief of Brooklyn North in 2005 and handled evaluation appeals. Id. ¶ ¶ 24, 29, 33, 35. Presumably, Whitehead did not appeal his evaluation at the borough level because he thought it was futile.

On or about April 2005, Whitehead was assigned to the Field Training Unit (" FTU" ), which he viewed as a demotion because it was staffed primarily with recent graduates of the police academy. Id. ¶ 32. Whitehead alleges that this demotion was in retaliation for his opposition to the quota policy, and was based on a personal vendetta held against him by Marino. Id. ¶ ¶ 32, 34. On May 3, 2006, Lieutenant Douglas Satchwell told Whitehead that he would be returned to his previous assignment if he showed " FTU-like activity," which Whitehead understood to mean a high number of ...


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