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Makinen v. City of New York

United States District Court, S.D. New York

September 30, 2014

KATHLEEN MAKINEN, et al., Plaintiffs,
CITY OF NEW YORK, et al., Defendants

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For Kathleen Makinen, Jamie Nardini, Angel Torres, Plaintiffs: Lisa Ferro Joslin, LEAD ATTORNEY, Gleason, Dunn, Walsh & O'Shea, Attorneys, Albany, NY; Peter N. Sinclair, Gleason, Dunn, Walsh and O'shea, Albany, NY.

For City of New York, Raymond W. Kelly, as Police Commissioner of the City Of New York, Daniel J. Sweeney, Individually, Daniel J. Sweeney, in his official capacity, Defendants: Eric Jay Eichenholtz, LEAD ATTORNEY, NYC Law Department, Office of the Corporation Counsel (NYC), New York, NY; Benjamin Welikson, The New York City Law Department, New York, NY.

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ANDREW L. CARTER, JR., United States District Judge.


Plaintiffs Kathleen Makinen, Jamie Naridini and Angel Torres (collectively referred to herein as " Plaintiffs" ) brought this action against the City of New York, former Police Commissioner Raymond W. Kelly, the New York City Police Department (" NYPD" ), and NYPD Sergeant Daniel Sweeney, individually and in his official capacity, (collectively referred to as " Defendants" ), asserting state and federal claims of disability discrimination and unpaid wages and overtime, as well as a myriad of state law tort claims in connection with the NYPD's alleged misdiagnoses of them as suffering from alcohol dependence or abuse. On May 6, 2013, Defendants moved for summary judgment, (ECF No. 32), and on June 26, 2013 Plaintiffs cross-moved for partial summary judgment. (ECF Nos. 33 & 50.) For the reasons stated below, Defendants' motion is granted and denied in part and Plaintiffs' motion is denied.


A. Factual Background

The following facts are drawn from Plaintiffs' " Statement of Material Facts pursuant to Local Rule 56.1 Statement" (ECF No. 54 (" Pls.' Stmt." ), submitted as a counterstatement to Defendants' 56.1 Statement in support of their motion, Defendants' " Local Rule 56.1 Statement in Opposition to Plaintiffs' Statement of Undisputed Material Facts" (ECF No. 59 (" Defs.' Counter-Stmt." )), submitted as a counterstatement to Plaintiffs' 56.1 Statement, as well the underlying evidence cited therein. Where the facts are subject to legitimate dispute, they are construed in favor of the non-moving party. Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993).


The NYPD's Counseling Services Unit (" CSU" ) is a certified New York State Office of Alcoholism and Substance Abuse Services (" OASAS" ) outpatient treatment center. (Pls.' Stmt. ¶ 6.) Its stated objective is to assist police officers who are experiencing difficulty with alcohol, prescription

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medication, gambling or finances in their rehabilitation and return to productive service. (Pls.' Stmt. ¶ ¶ 5, 7.) CSU is comprised of a Commanding Officer, currently and at all relevant times here Sergeant Daniel Sweeney, a Clinical Case Manager, currently Michael Bahrenburg, as well as several counselors. (Defs.' Counter-Stmt. ¶ 222.) CSU does not have psychologists or medical doctors on staff, but it does have access to and consults with the NYPD's staff of medical doctors, psychologists and psychiatrists. (Defs.' Counter-Stmt. ¶ ¶ 223-24.)

An officer can be referred to CSU by NYPD supervisors, medical officials, or self-refer themselves. (Pls.' Stmt. ¶ 8.) When an officer is referred to CSU, he or she first meets with a CSU counselor for an intake interview. (Pls.' Stmt. ¶ 9.) CSU staff then conducts an assessment process that includes a review of the reasons for referral and consultations with collateral contacts familiar with the patient and for whom the patient executes a release authorizing CSU to make disclosures. (Pls.' Stmt. ¶ 10.) CSU does not utilize diagnostic testing, such as the Michigan Alcohol Screening Test, or blood, urine, liver or kidney function tests. (Defs.' Counter-Stmt. ¶ 229.) With respect to alcohol dependence or abuse, CSU's stated objective is to gather information to ascertain whether the officer is suffering from alcohol dependence and abuse within the meaning of Diagnostic and Statistical Manual IV (" DSM IV" ) guidelines. (Pls.' Stmt. ¶ 9.)

Approximately 98% of patients referred to CSU receive an alcohol-related diagnosis, and approximately 97% undergo some form of treatment, with 72% being sent to inpatient treatment and 18% referred to outpatient treatment. (Defs.' Counter-Stmt. ¶ ¶ 237, 240.) Employees who refuse CSU's recommended treatment are referred to the NYPD Medical Division, where they are ordered to comply and advised that refusal could result in suspension, and eventually termination. (Pls.' Stmt. ¶ 13; Defs.' Counter-Stmt. ¶ 248.) Upon discharge from their CSU prescribed treatment, patients are generally placed in a monitoring program for two years. (Defs.' Counter-Stmt. ¶ 249.) All prior diagnoses remain in CSU's files and are considered in future assessments, along with other factors. (Defs.' Counter-Stmt. ¶ ¶ 382-83.)

2. Plaintiff Makinen

a. March 4, 2007 Incident

Plaintiff Kathleen Makinen (" Makinen" ) was a police officer with the NYPD from April 1991 until May 2011. Her ex-husband, Joseph Cornetta, is a retired NYPD Detective. The two married in 1999, separated in 2006 and divorced in 2010, and have two children together. (Pls.' Stmt. ¶ ¶ 25-28.)

On March 4, 2007, Plaintiff was living in her home with her two children, her husband's cousin, Elizabeth Schule, and Schule's child. (Pls.' Stmt. ¶ 36.) The minor children were all under the age of six at the time. (Pls.' Stmt. ¶ 36.) Makinen and Schule engaged in an argument about Schule's failure to pay rent. (Pls.' Stmt. ¶ 37.) Schule eventually departed the home for whet was supposed to be fifteen minutes, but was gone for about two hours. (Pls.' Stmt. ¶ ¶ 37, 42.) After Schule departed, Makinen left the three children at home and walked across the street to drop off a bottle of homemade wine to a neighbor. (Pls.' Stmt. ¶ 38.) Schule returned to the home while Makinen was at the neighbor's home and called Makinen, at which point they began to argue. (Pls.' Stmt. ¶ ¶ 39-40.) Schule accused Makinen of leaving the children unsupervised, while Makinen explained that she was only across the street in the doorway and could

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see Schule during their argument. (Pls.' Stmt. ¶ 41; Defs.' Counter-Stmt. ¶ 396.) Makinen, upset about the argument and Schule's unexpected two-plus hour departure, hung up on Schule. (Defs.' Counter-Stmt. ¶ 396.)

Makinen remained at the neighbor's home where she drank two glasses of the homemade wine. (Pls.' Stmt. ¶ 43.) Afterwards, Makinen departed for the home of another neighbor and friend to have some tea and calm down, and stayed for approximately two to three hours. (Pls.' Stmt. ¶ ¶ 44-45.) At this point, the neighbor to whom Makinen brought the wine arrived at the home and reported that there were no cars in the driveway of Makinen's home. (Pls.' Stmt. ¶ 46.) Makinen hastily returned home to find that her children were not there, at which point she called Cornetta and Schule, neither of whom answered, and then the Suffolk County Police. (Pls.' Stmt. ¶ 47; Defs.' Counter-Stmt. ¶ 400.)

The police responded to Makinen's home at 9:15 p.m., and found Makinen hysterical and crying. (Pls.' Stmt. ¶ ¶ 49-50.) The responding Suffolk County Police sergeant advised Makinen that they had also received a call from Schule alleging that Makinen had left the children unattended for two hours. (Pls.' Stmt. ¶ 50; Defs.' Counter-Stmt. ¶ 401.) The sergeant observed Makinen as intoxicated and " acting irrational[ly]" and " belligerent[ly] toward the responding officers." (Pls.' Stmt. ¶ 51.) Makinen attempted to explain her version of the events to the officers but, after an investigation, was placed under arrest and charged with three counts of Endangering the Welfare of a Child and transported to the 6th Precinct of the Suffolk County Police Department. (Pls.' Stmt. ¶ ¶ 52-53; Defs.' Counter-Stmt. ¶ 403.)[1]

At around midnight on March 5, 2007, hours after Makinen had been placed under arrest, NYPD Sergeant Shirley Pinkey, Lieutenant George Howley and Captain Theodor Papadapolos arrived at the Suffolk County Police station where Makinen was being held. (Pls.' 56.1 Stmt. ¶ 54.) The three all observed that Makinen had a strong odor of alcohol on her breath, bloodshot eyes, and appeared disheveled. (Pls.' Stmt. ¶ ¶ 55-60.) Sgt. Pinkey and Lt. Howley found Makinen to be cooperative; Capt. Papadapolos noted Plaintiff was acting excitedly and irrationally. (Pls.' Stmt. ¶ ¶ 55, 57, 60.) The three unanimously found Makinen unfit for duty and informed her that she was suspended. (Pls.' Stmt. ¶ 61.) Makinen was suspended for thirty days, placed on modified duty status, under which she was unable to work overtime, and had her gun and shield removed. (Pls.' Stmt. ¶ ¶ 62-64.) Makinen was also referred by the NYPD's Medical Division to CSU. (Pls.' Stmt. ¶ 65.)

b. 2007 CSU Diagnosis & Treatment

On May 18, 2007, Makinen reported to CSU and was interviewed by CSU counselor Christine Carlozzi. (Pls.' Stmt. ¶ ¶ 65-67.) Makinen reported that she only had two glasses to drink on the evening of March 4, 2007 and was not intoxicated, and that she only drank once in a while. (Pls.' Stmt. ¶ ¶ 68-69, 71.) Makinen signed releases permitting CSU to consult with her mother and father, supervisor, counselors, psychiatrist, ex-husband and the friend to whom she brought the bottle of wine on March 4, 2007. (Pls.' Stmt. ¶ ¶ 74-75.)

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After CSU conducted its independent review of the circumstances surrounding the March 4, 2007 incident and the determination that she was unfit for duty, and consulted with Makinen and her references, CSU determined that Makinen was suffering from alcohol dependence. (Pls.' Stmt. ¶ 75.) Among other things, CSU considered the reports of Makinen's actions on the evening of March 4, 2007, and Makinen's denial of being intoxicated that evening or of having any alcohol-related issues. (Pls.' Stmt. ¶ ¶ 76-79.) Incidentally, however, about one month after her arrest, one of Makinen's counselors, Licensed Clinical Social Worker Joseph Stassi, had noted that while " there has been a question as to whether Makinen [was] an alcoholic or abuses alcohol," there was " nothing in [his] evaluation which leads [him] to have that impression." (Defs.' Counter-Stmt. ¶ ¶ 406-07.)

Nonetheless, CSU recommended a course of outpatient treatment for Makinen, which she initially refused, but ultimately accepted after being advised she would be ordered to and suspended if she refused. (Pls.' Stmt. ¶ ¶ 80-81; Defs.' Counter-Stmt. ¶ ¶ 412-13.) Makinen was discharged from outpatient treatment on November 1, 2007 and prescribed follow-up treatment that included alcohol abstinence, attendance at Alcoholic Anonymous (" AA" ) meetings and maintenance of a sober support network. (Pls.' Stmt. ¶ 82.)

c. 2008 CSU Referral

In September 2008, Makinen was again referred to CSU in connection with an internal affairs complaint lodged by Cometta alleging, among other things, that Makinen had a drinking problem and should be treated. (Pls.' Stmt. ¶ ¶ 83-84; Defs.' Counter-Stmt. ¶ 415.) As a result, Makinen met with CSU counselor Karl Schaeffer. (Pls.' Stmt. ¶ 85.) Schaeffer interviewed Makinen, contacted individuals for whom Makinen provided releases, and ultimately concluded that Cometta's allegation was unreliable and unfounded, and that there was no evidence that Makinen was in relapse. ( See Pls.' Stmt. ¶ ¶ 86-91.)

d. 2010 CSU Referral & Treatment

On July 31, 2010, Makinen was again referred to CSU after Cornetta made allegations that Makinen had disclosed to the psychologist of one of their children that she was drinking again, and that Makinen had also driven while intoxicated and abused their children. (Pls.' Stmt. ¶ ¶ 92-93; Defs.' Counter-Stmt. ¶ ¶ 418-19.) On August 16, 2010, Makinen was interviewed by CSU counselor John Mazzella and denied that she had resumed drinking. (Pls.' Stmt. ¶ ¶ 94-95, 98.) Makinen executed releases for her parents, her ex-husband, her brother and his wife, her counselor, Patrolmen's Benevolent Association (" PBA" ) attorney, Child Protective Services (" CPS" ) case worker and her child's psychologist. (Pls.' Stmt. ¶ 97.)

Mazzella's notes indicate the following with respect to his conferrals with Makinen's collateral contacts: Makinen's CPS worker reported that Makinen had advised her that she drank " sporadically," sometimes while watching TV, going to bed or reading a book on the porch; Makinen's counselor reported that Makinen advised that she consumed one to two glasses of wine a week; Makinen's child's psychologist reported that Makinen told her that she would drink one glass of wine after work due to job-related stress, and that the child had told her that Makinen drank while in bed with her. ( See Pls.' Stmt. ¶ ¶ 100-101; June 25, 2013 Declaration of Lisa Joslin (" Joslin Decl." ) Ex. V, ECF No. 51.) Mazzella subsequently confronted Makinen with this information, at which point she admitted to drinking. (Pls.' Stmt. ¶ 102.)

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After CSU completed its review, it determined that Makinen was in relapse, and recommended Makinen attend an inpatient rehabilitation treatment facility in Waverly, Pennsylvania. (Pls.' Stmt. ¶ 103.) Makinen refused initially, and was ordered to go by the NYPD Medical Division. (Pls.' Stmt. ¶ 107.) Makinen reported the next day with her PBA attorney and was advised that she would be suspended without pay for 30 days if she refused to comply with CSU's recommended inpatient treatment. (Pls.' Stmt. ¶ ¶ 107-09.) Makinen decided to comply and was transported to Waverly two days later, where she remained from August 20, 2010 through September 17, 2010. (Pls.' Stmt. ¶ 110.) The facility's records indicate that Makinen had " a fair treatment experience and began the process of being educated into the disease of alcoholism," while Makinen subsequently stated that she learned coping skills for dealing with her ex-husband during treatment. (Pls.' Stmt. ¶ ¶ 112, 113.)

After Makinen was discharged, CSU prescribed a treatment regimen which included three AA meetings per week, two group outpatient counseling sessions per week, private therapy sessions with her personal therapist and weekly group sessions at CSU. (Pls.' Stmt. ¶ 114.) Makinen was discharged from CSU's outpatient treatment program on January 26, 2011. (Pls.' Stmt. ¶ 116.) On May 30, 2011, Makinen retired from the NYPD with her full pension and benefits. (Pls.' Stmt. ¶ 118.) Makinen testified that she retired because of CSU's involvement with Cornetta and Schule's complaints. (Pls.' Stmt. ¶ 118).

3. Plaintiff Nardini

Plaintiff Jamie Nardini was appointed an NYPD police officer on July 10, 2006. (Pls.' Stmt. ¶ 182.) She has a daughter with her ex-boyfriend, former NYPD Sergeant William Eiseman, from whom she separated in March 2010. (Pls.' Stmt. ¶ ¶ 183, 184.) At some point after the separation, Nardini applied for and was granted full custody of their daughter, over Eiseman's objection. (Pls.' Stmt. ¶ ¶ 184-85; Defs.' Counter-Stmt. ¶ ¶ 361-62.)

On October 27, 2010, Nardini was referred to CSU as a result of allegations of alcohol abuse and/or dependence emanating either from Eiseman or his sister, Tracy Sinatra. (Pls.' Stmt. ¶ 188; Defs. Counter-Stmt. ¶ ¶ 362-63.) On October 28, 2010, Nardini reported to CSU with her PBA delegate and was interviewed by CSU counselor Victoria Tobin. (Pls.' Stmt. ¶ ¶ 193-94.) Nardini reported that the last time she drank alcohol was at an NYPD boxing match and asserted that Eiseman/Sinatra's allegations were in retaliation for her successful custody application. (Pls.' Stmt. ¶ 195; Defs.' Counter-Stmt. ¶ 365.) Nardini executed a release authorizing CSU to speak with her NYPD partner, mother, brother, the law guardian of her child, a friend and Sinatra. (Pls.' Stmt. ¶ ¶ 197-98.)

When contacted by CSU, Nardini's family members reported that Nardini did not have a drinking problem. (Pls.' Stmt. ¶ 202.) Sinatra, however, reported that she had witnessed Nardini intoxicated on two occasions and that Nardini became " nasty" and " unsteady on her feet" when she drank. (Pls.' Stmt. ¶ 203). After CSU completed its review, it concluded that Nardini was suffering from alcohol abuse, but was not in need of chemical dependence services. (Pls.' Stmt. ¶ 204.) Specifically, CSU discredited Nardini's denial in light of the fact that Eiseman, whom Tobin did not confer with directly, corroborated Sinatra's " specific recollection of two public outings." (Defs.' Counter-Stmt. ¶ ¶ 366-67, 69.) However, the NYPD had previously determined, on October 22, 2010, in connection with an allegation by

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Eiseman that Nardini had sent him harassing messages, that Eiseman had " taken several steps to manipulate the judicial system and use the internal regulations of this Department to cause undue harm to Officer Nardini, both personally and professionally." (Pls.' Stmt. ¶ 384.)

CSU initially recommended that Nardini attend two weekly AA meetings, and weekly individual counseling sessions at CSU. (Pls.' Stmt. ¶ 204; Defs.' Counter-Stmt. ¶ 379.) Nardini refused and returned to CSU the following day. After additional discussion, CSU and Nardini agreed that she would watch six educational videos over the course of six weeks and have weekly meetings with a CSU counselor. (Pls.' Stmt. ¶ ¶ 208-09.) Nardini was paid for the time she spent watching the educational ...

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