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Polanco v. City of New York

United States District Court, S.D. New York

June 27, 2018




         Plaintiff Adhyl Polanco (“Plaintiff” or “Polanco”) brings this civil rights action against Defendants The City of New York (the “City”) and The New York City Police Department (the “NYPD, ” and together, the “Defendants”), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), New York State Executive Law § 296 (the “NYSHRL”), New York City Administrative Code § 8-107 (the “NYCHRL”), 42 U.S.C. § 1983, and New York State Constitution Article I, § 8. In an eight-count Complaint, Plaintiff, a Latin-American NYPD police officer and employee of the City, alleges that Defendants subjected him to unlawful discrimination, a hostile work environment, and retaliation for speaking about the NYPD's allegedly illegal quota system, which he believes targets minority communities, in violation of various anti-discrimination laws and the First Amendment.

         The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.

         This case was originally filed in the United States District Court for the Eastern District of New York, on September 1, 2015. It was transferred to this Court in 2016.

         Defendants move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Complaint for failure to state a claim upon which relief can be granted. (Docket Entry No. 13.)

         The Court has carefully reviewed all of the parties' submissions and, for the following reasons, the Defendants' motion is granted. Plaintiff will be afforded the opportunity to request leave to file an amended complaint.


         The following facts are derived from the allegations of the Complaint (“Compl.”, Docket Entry No. 1), and are assumed to be true for purposes of the instant motion practice.

         Plaintiff is a Latin-American NYPD police officer who joined the NYPD on July 11, 2005. (Compl. ¶¶ 6-7, 12.) The City and NYPD are municipal agencies with offices and places of business in New York, New York. (Id. ¶¶ 9-10.)

         Plaintiff alleges that, beginning in 2009, he made multiple statements to the press and other media “about the existence of quotas in the issuance of summons and arrest[] warrants in the NYPD” and the Department's practice of “targeting” African-American communities “in order to obtain the summons and arrest numbers required by the quota[, ]” and also asserted in such statements that the supervisors of the 41st Precinct, to which he was assigned, “were aggressively using threats of termination and negative employment actions[, ] such as low performance evaluations and punitive postings, to compel police officers to issue borderline and illegal summons and make borderline and illegal arrests in order to achieve a goal of a certain number of” summons and arrests per quarter. (Id. ¶¶ 12-13.) In November 2009, Plaintiff alleges, he reported “misconduct and corruption within the [precinct]” to the NYPD's Internal Affairs Bureau (“IAB”), including similar complaints about the supervisors' actions to those he made to the media. (Id. ¶ 14.)

         Plaintiff filed a follow-up report with the IAB the next month complaining of retaliation for his IAB complaint. (Id. ¶ 15.) He further alleges that, in retaliation “for his opposition to the [NYPD's] racially discriminatory quota practices, ” beginning in December 2009 and continuing for an unspecified period, he was “falsely and pretextually charged with insubordination” and was subjected to numerous punishments, including 30 days suspension without pay, 1500 days suspension with pay, over 400 days of punitive posting in VIPER, over 1500 days on restricted duty psychological hold without cause, no vacation for four years, no overtime for four years, no night differential pay for four years, no training for four years, and placement on level two performance monitoring for over four years. (Id. ¶ 16.) Plaintiff further alleges he was retaliated against for his opposition to the NYPD's quota practices on December 23, 2009, and in January 2010, when he was placed on modified assignment transfer out of command and placed on mental watch through 2015. (Id. ¶¶ 17-18.)

         On March 1, 2010, Plaintiff was interviewed by a local news station about the NYPD's use of quotas in the 41st Precinct and in the NYPD at large and, on August 25, 2010, the Village Voice published a similar interview with Plaintiff. (Id. ¶¶ 19-20.) Plaintiff provided testimony in an April 2010 deposition, and again at trial on or about March 2013, in a class action lawsuit in this district “regarding the NYPD's stop[-]and[-]frisk practice and how it unfairly targets the minority community, ” in which he testified that the NYPD targets minorities “to attain high levels of enforcement activity numbers mandated by illegal quotas” and punishes officers “for not participating in” enforcing the quotas. (Id. ¶¶ 28, 30.)

         According to Plaintiff, the alleged retaliation “intensified” following his testimony. (Id. ¶ 29.) Plaintiff alleges that, from March 2010 through December 2014, he was “placed on performance monitoring, . . . suspended with pay, and . . . placed on dismissal probation for one year from December 2013 to December 2014.” (Id. ¶ 21.) He further alleges that, “[f]rom October 2014 [] till date, . . . [he] was further punished by being placed on dismissal probation[, ] . . . on mental watch” and “on performance monitoring, ” and “assigned to less desirable jobs than his white counterparts, with similar age and” experience. (Id. ¶¶ 22-23, 25.) Since October 2014, he has also “been reprimanded and sanctioned[] in a more severe manner than his white counterparts, for failing to meet monthly summons and arrests quotas.” (Id. ¶ 26.) He alleges that this “discriminatory” conduct is “ongoing.” (Id. ¶ 27.)

         Plaintiff also alleges that he has been “subjected to a hostile working environment as a result as a result of his race and national origin” beginning in October 2014, and he describes two specific incidents: (1) the “vandalization” of his locker by covering it with photographs of the leader of The New York City Patrolmen's Benevolent Association (the “PBA”), the union representing NYPD police officers, and (2) an incident on January 23, 2015, when he was allegedly “accosted” at the 94th Precinct by a police officer who called him a “fucking bitch, ” a race-neutral vulgarity. (Id. ¶ 24.) Plaintiff alleges that the IAB has not responded to his complaints about this treatment and his belief that his safety is under threat, and that his requests for a transfer out of the precinct have gone unaddressed. (Id.)


         Defendants move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss this action for failure to state a claim upon which relief may be granted. When considering a Rule 12(b)(6) motion, the Court accepts as true all non-conclusory factual allegations in the complaint and draws all reasonable inferences in the Plaintiff's favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007). To survive such a motion, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court is not, however, required to accept “conclusory statements” made by the Plaintiff as true, nor do “legal conclusion[s] couched as [] factual allegation[s]” merit such deference. Twombly, 550 U.S. at 555.

         Plaintiff's Claims Against the NYPD

         As an agency of the City of New York, the NYPD is a non-suable entity. See N.Y.C. Charter § 396 (2014) (“All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency . . . .”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (noting that no claim may be brought directly against NYPD). Therefore, Plaintiff cannot properly assert any claims directly against the NYPD. Defendants' motion is thus granted in its entirety with respect to the NYPD, and all claims asserted against the NYPD are dismissed, without prejudice to litigation against the City of the substance of the claims.

         Timeliness of ...

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