Griffin v. City of N.Y.

880 F.Supp.2d 384

James GRIFFIN, Plaintiff,

v.The CITY OF NEW YORK, New York City Police Department, Joseph Reznick, individually, Sean Crowley, individually, and Michael Miltenberg, individually, Defendants.

No. 10 CV 2592(RJD)(MDG).

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

July 31, 2012.

Guy William Germano, Law Office of Borrelli & Associates, Great Neck, NY, Michael J. Borrelli, Alexander T. Coleman, Borrelli & Associates, P.C., Carle Place, NY, for Plaintiff.

Andrea Mary O'Connor, New York City Law Department, Daniel Chiu, Michael A. Cardozo Corporation Counsel of the City of New York, New York, NY, for Defendants.

MEMORANDUM OF DECISION

DEARIE, District Judge.

I. INTRODUCTION

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.

II. BACKGROUND

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 ...