Alvarez v. City of New York

31 F.Supp.2d 334

Gil Q. ALVAREZ, Plaintiff, v. The CITY OF NEW YORK and The Police Department Of the City Of New York, Defendants.

No. 98 CIV. 7227(DC).

United States District Court, S.D. New York.

December 11, 1998.

Goodstein & West by Robert David Goodstein, Lisa R. Lipman, New Rochelle, NY, for Plaintiff.

Michael Hess, Corporation Counsel for the City of New York by Steven K. Weiss, Naomi Sheiner, Assistant Corporation Counsels, New York City, for Defendants.

Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York City, as Amicus Curiae.

OPINION

CHIN, District Judge.

In this case, the third of three employment cases that plaintiff Gil Q. Alvarez has brought against the Police Department of the City of New York (the "NYPD"), Alvarez alleges that the NYPD retaliated against him for filing the second of the three cases, Alvarez II. At that time, Alvarez moved for a preliminary injunction to prevent the NYPD from conducting an investigation into his alleged misuse of confidential information in the first case, Alvarez I. I denied the motion, declining to interfere with the NYPD's internal disciplinary process because Alvarez had failed to establish either the threat of irreparable harm or the likelihood of success on the merits. Alvarez v. City of New York, 2 F.Supp.2d 509, 514-15 (S.D.N.Y.1998).

The NYPD thereafter proceeded with an investigation. Instead of merely exploring Alvarez's alleged misuse of confidential information, however, it conducted a much broader investigation. It interrogated Alvarez about the allegations in his complaint and amended complaint in Alvarez II, and eventually it served Alvarez with Charges and Specifications accusing him of violating NYPD regulations. Eleven of the fifteen charges alleged that Alvarez made "false official statements" in his complaint and amended complaint in Alvarez II. Ten of those eleven alleged that the false statements were made in an "Official Department Interview" as well.

Alvarez moves for a preliminary injunction to enjoin the NYPD from pursuing disciplinary proceedings against him based on his filing of Alvarez II. Because Alvarez has demonstrated both irreparable harm and a likelihood of success on the merits, the motion is granted. The NYPD is hereby enjoined, during the pendency of this action, from prosecuting any disciplinary proceedings against Alvarez based on his filing of Alvarez II.

Pursuant to Fed.R.Civ.P. 65, my findings of fact and conclusions of law follow.

FINDINGS OF FACT

A. Alvarez I

In October 1996, Alvarez filed Alvarez I, a Title VII action in which he alleged that the NYPD discriminated and retaliated against him because he had refused to negatively evaluate minority officers who had complained about discriminatory treatment and the use of racial slurs by police officers.

During the course of discovery, the NYPD accused Alvarez of improperly obtaining confidential NYPD records for use in his lawsuit. At some point, Alvarez's then-attorney invited the NYPD to investigate the matter, so that Alvarez would have an opportunity to clear his name. On October 1, 1997, the Internal Affairs Division ("Internal Affairs") of the NYPD opened an investigation into Alvarez's alleged misuse of confidential NYPD information.

Alvarez was thereafter transferred to the Civilian Complaint Review Board ("CCRB") Team where, in his capacity as Assistant Department Advocate, he investigated and prosecuted cases involving allegations of police brutality and misconduct.

The parties settled Alvarez I in February 1998. The City paid Alvarez $62,500, but the NYPD refused to agree to any equitable relief. Alvarez accepted the settlement nonetheless. As part of the settlement, he signed a general release.

On or about March 23, 1998, Internal Affairs orally directed Alvarez to appear for a disciplinary interview in connection with his alleged improper use of confidential documents. The interview was to be conducted under oath, as part of as a "PG 118-9 hearing."¹ Initially scheduled for March 27, 1998, the interview was postponed until April 8, 1998.

B. Alvarez II

On April 7, 1998, the day before the scheduled interview, Alvarez filed Alvarez II and sought a temporary restraining order and preliminary injunction enjoining the NYPD from proceeding with the PG 118-9 hearing and otherwise prosecuting the disciplinary proceedings.

Alvarez alleged that the NYPD retaliated against him for filing Alvarez I and for refusing to cover up police misconduct. In particular, Alvarez alleged that he had been ordered by his superiors to cover up a case before the CCRB in which two NYPD detectives, Larry Schwartz and Dwayne Shepherd, were accused of unlawfully detaining and beating an Hispanic man, Manuel Villa, and fabricating charges against him. Alvarez contended that he had been ordered not to call the complainant or the medical examiner as witnesses at the departmental trial. He alleged further that he had been demoted from his position as "Training Sergeant" and otherwise adversely treated in retaliation for his actions.

Alvarez's allegations of retaliation and the cover-up of police brutality received extensive and sympathetic press coverage. See, e.g., Al Guart, Whistle-Blowing Cop in Hiding, N.Y. Post, April 10, 1998, at 20 (reporting that Alvarez had gone into hiding from police investigators after going public with claims that NYPD "supervisors routinely order[ed] underlings to reduce charges against cops accused of brutality"); Patricia Hurtado, Cop Fears Revenge, Newsday, April 10, 1998, at A29 (reporting that Alvarez "fear[ed]" retaliation by the NYPD for revealing that he was "ordered by superiors" to cover up an alleged incident involving excessive use of force); David Kocieniewski, A Police Prosecutor Asserts a Cover-Up in a Beating Inquiry, N.Y. Times, April 9, 1998, at A1 (reporting that Alvarez had charged in a federal lawsuit that his commanders had ordered him to "cover up" evidence of police brutality and that he had been "demoted" because he had objected to the NYPD's handling of the allegations); NY Cop Alleges Cover-Up in Inquiry, AP Online, April 9, 1998 (reporting that Alvarez had charged in a federal lawsuit that his commanders had urged him to conceal evidence in investigation of a beating by two detectives and that he had been "demoted" for criticizing the NYPD's handling of the case).

I heard argument on Alvarez's motion for a temporary restraining order and preliminary injunction on April 7 and 14, 1998. The NYPD agreed to voluntarily postpone Alvarez's PG 118-9 interview until after a decision on the motion. On April 21, 1998, I denied the motion. Alvarez v. City of New York, 2 F.Supp.2d 509, 514-16 (S.D.N.Y. 1998). As a consequence, the NYPD was free to proceed with its investigation.

C. The Investigation

1. The April 28th Interview

Alvarez's PG 118-9 hearing was held on April 28, 1998. Three members of the NYPD questioned Alvarez: Captain James Waters, the commanding officer of the Special Investigations Unit (the "SIU") of Internal Affairs; Detective Dennis Barden, of SIU; and Sergeant Michael Daley, of the Special Prosecutor's Office. Alvarez was represented by his attorney from Alvarez II, Bonita E. Zelman.

The transcripts of the April 28th hearing² show that Alvarez was advised that he was present to be questioned as a "subject" of an official Police Department investigation into allegations that he "improperly accessed confidential information from [NYPD] computers for the furtherance of [his] law suit." (CX A at 3-4). Alvarez was advised at the outset of the interview that if he refused to testify or to answer questions relating to the "performance of [his] official duties, [he would] be subject to department charges [that] could result in [his] dismissal from the Police Department." (Id. at 4).

The hearing transcripts show that Alvarez's attorney and the three NYPD officials engaged in numerous heated colloquies as Zelman objected repeatedly to questions. At one point, Zelman directed Alvarez not to answer a question unless the examiners provided certain clarifying information first. Daley responded:

Counselor, if that's the legal course that you wanna take, you're certainly entitled to advise your client accordingly. However, as you well know, if he refuses to answer questions, he will be suspended and the Department will take procedures — we'll, we'll embark on procedures designed to terminate him from the Police Department. So why don't we begin answering questions and handle this on a question by question basis?

(CX A at 19) (emphasis added). After Zelman asked if Alvarez was being directed to answer the questions, Waters responded: "I am Captain Waters, and I am going to direct him to answer the questions ...." (Id. at 20).

At times, the questioning took a hostile and sarcastic tone. For example:

Q Did you ever have any conversations with anybody from the Corporation Coun[sel] regarding your lawsuit? Did you speak to the people from the Corporation Coun[sel]?

A My attorney. Regarding my lawsuit?

Q Yes.

A My attorney spoke to them.

Q Did you ever speak to them?

A I don't believe I did.

Q You don't believe that you ever uttered a single word to any of the people from the Corporation Coun[sel]?

A No.

Q So, you didn't say hello to them, you didn't introduce yourself? You didn't greet them?

A I may have exchanged pleasantries, if that's what you're asking ... (interrupted)

...

Q So, you did talk to them, you did open your mouth and communicate ....

(CX A at 102-03).

At some point, Alvarez was asked repeatedly about his request for an injunction in Alvarez II and whether he sought the injunction because he knew that he was going to be questioned at the PG 118-9 hearing about how he obtained confidential information. (CX B at 13-33). The NYPD officials then attempted to ask him about the Court's decision on his motion for a preliminary injunction. (Id. at 33-34, 38). Zelman...