Kim v. Cnty. of Nassau

SUNG D. KIM, Plaintiff, v. COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT,THOMAS KRUMPTER Former Acting Police Commissioner, in his individual and official capacity,SERGEANT TARA COMINSKEY and POLICE OFFICER BRIAN MONK, Defendants.

CV 19-3264 (SJF) (ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

October 2, 2020

REPORT AND RECOMMENDATION

LINDSAY, Magistrate Judge:

On May 31, 2019, the plaintiff, Sung D. Kim ("Kim"), commenced this action against the defendants, the County of Nassau (the "County"), the Nassau County Police Department ("NCPD"), the former acting Police Commissioner Thomas Krumpter, ("Krumpter"), Sergeant Tara Cominskey ("Cominskey") and Police Officer Brian Monk ("Monk") (collectively, the "defendants"), pursuant to 42 U.S.C. §§ 1981, 1983 and 1988, the Second and Fourteenth Amendments to the United States Constitution, and New York State Executive Law §§ 290 and 296, alleging that he was discriminated against by the defendants due to his Asian American race and South Korean national origin. Kim seeks damages for the alleged retaliatory employment practices of the defendants, his forced resignation, the hostile work environment to which he was exposed and the violation of his right to bear arms. Before the Court, on referral from District Judge Feuerstein, is the motion of the defendants to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the undersigned respectfully recommends that the motion be granted.

BACKGROUND

A. Factual Averments

The following facts are drawn from the Complaint and are accepted as true for purposes of the instant motion. Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993). These facts, however, do not constitute findings of fact by the Court. See Colvin v. State University College at Farmingdale, No. 13-CV-3595 (SJF) (ARL), 2014 U.S. Dist. LEXIS 85678, 2014 WL 2864224, at *1, n.1 (E.D.N.Y. June 19, 2014).¹

1. The Parties

Kim is an Asian American man of South Korean descent, who worked as a police officer for the NCPD between March 11, 2005 and April 16, 2017. Compl. ¶¶ 15, 18. Prior to his employment at the NCPD, Kim worked for eight years as a police officer for the New York City Police Department. Id. ¶ 16. The defendant County is a municipal corporation of the State of New York with direct authority over the NCPD. Id. ¶ 10. The defendant Krumpter is the former Acting Police Commissioner of the NCPD. Id. ¶ 12. He served as the Police Commissioner at all times relevant to this complaint. Id. The defendant Cominskey was a police officer and the Equal Employment Officer employed by the County. Id. ¶ 13. The defendant Monk was also a police officer at the NCPD. Id. ¶ 14.

2. The Events Leading up to Kim's Termination

On November 25, 2012, Kim was working overtime as signal monitor. Id. ¶ 28. At some point, Kim heard the voices of other police officers congregating in a nearby room and walked to the doorway of that room to see what was happening. Id. ¶ 29. Kim noticed Monk standing near the doorway at the other end of the room but returned to his desk to answer the phone withoutengaging Monk. Id. According to the complaint, a few minutes later, Kim was knocked off his chair and thrown to the floor. Id. ¶ 30. Kim claims that he was hit from the right side as if tackled and fell to the ground hitting the back of his head and hands on the floor. Id. When Kim regained his senses, he realized that Monk was on top of him. Id. ¶ 31.

Monk continued to punch Kim and Kim attempted to block the punches by holding one of Monk's arms. Id. ¶ 32. Kim then tried to grab hold of Monk's vest. Id. Eventually Monk was pulled off of Kim by Police Officer Casella ("Casella"). Id. ¶ 33. Casella then helped Kim up off the floor. Id. Although Casella, with the help of Police Officer Trosko ("Trosko"), kept Monk and Kim separated, Monk continued to yell "this is payback." Id. ¶ 34. Upset by the attack, Kim responded "you're not a man, you're a pussy, and if you have a problem with me, let's take it outside." Id.

Following the incident, Casella took Monk into the hallway because he refused to calm down. Id. Kim, who was feeling anxious and dazed, began to pace and in doing so tripped over a step leading back to his desk. Id. ¶ 35. As he fell, he hit his hand on the side of a metal desk. Id. When he stood up, one of the officers noticed that his hand looked swollen. Id. ¶ 35. An ambulance was called and Kim was taken to the hospital. Id. ¶ 36. The ambulance was driven by Police Officer Volpe ("Volpe") while an Ambulance Medical Technician remained in the back with Kim. Id. Kim was taken to Franklin General Hospital where it was later determined that his hand was broken. Id. ¶¶ 36-7. Kim's hand was placed in a cast and he was given pain killers and released several hours later. Id. ¶ 38.

Upon his release from the hospital, Kim was driven back to the station house and was told to report to his supervisor's office. Id. ¶ 39. An injury report was prepared by the supervisor and a member injury statement was prepared by Volpe. Id. The injury was reportedas a line of duty injury and Kim was awarded worker's compensation. Id.

3. Kim's Request for a Squad Change

In February 2013, when Kim returned to work, Kim was placed on restricted assignment with the same squad to which he had been assigned prior to the November 2012 incident. Id. ¶ 46. He remained with that squad for seven months, but in September 2013, Kim requested a squad change. Id. Kim explained that for eight years, he had been enduring racially motivated incidents at the Fifth Precinct. Id. ¶ 47. Cominskey, the Equal Employment Officer, dismissed his complaints, indicating that they were not severe or pervasive. Id. ¶ 50. She also told Kim that "he "should try writing more summonses if . . . [wanted] a transfer." Id. Kim notes that he had reported a number of incidents to Cominskey and she did not take his allegations seriously. Id. ¶ 48. Kim further claims that Cominskey's failure to present his complaints to the director was contrary to EEO policies and procedures. Id.

4. Kim's Disciplinary Hearing and Termination

Nevertheless, Kim remained with the squad and, in June 2015, over two years after the incident with Monk, Kim was subjected to a disciplinary hearing. Id. ¶¶ 51-2. Kim claims that the focus of the hearing was how the injury to his hand had occurred. Id. He further asserts that he was forced to defend himself against accusations regarding the physical attack by Monk. Id. At the conclusion of the hearing, the hearing officer recommended a four month suspension for both Monk and Kim. Id. ¶ 52. Kim felt the decision was completely unwarranted since he had been attacked and harassed by a fellow officer who disliked him because of his Asian American race and South Korean origin. Id. ¶ 53. Kim believes that had any non-Asian-American officer been unjustifiably attacked and harassed by a fellow officer, that officer would not have been disciplined. Id. ¶ 54.

Kim further complains that when Krumpter received the hearing officer's recommendation to suspend him for four months, Krumpter chose to disregard it.² Id. ¶ 55. Instead, Krumpter decided to terminate Kim. Defs. Mem. at 4. However, after meeting with Kim's counsel's and a representative from the Police Benevolent Association, Kim was given the option to sign a Stipulation of Settlement and Release (the "Release") permitting him to remain employed until April 16, 2017. Id. ¶¶ 55-6. Kim claims that Krumpter told him that if he wanted to remain on the force to complete his twenty year requirement and receive full pension benefits, he had to sign the Release. Id. ¶ 57. At the time, Kim also spoke to his union representative and was advised that if he did not sign the document, he would be terminated immediately and lose his twenty years of service. Id. ¶ 58.

On December 23, 2016, Kim executed the Release, which stated, in pertinent part:

Police Officer Kim acknowledges that he has been fairly represented throughout this process by counsel, and his union, the Police Benevolent Association, and releases counsel and the union from any and all liability arising from this proceeding. Police Officer Kim acknowledges that he has been given the opportunity to consult with counsel and his Union prior to executing this Settlement Agreement and Release. Police Officer Kim further acknowledges that he has carefully read this Settlement Agreement and Release in its entirety, understands the terms of this Settlement Agreement and Release, voluntarily assents to all terms, conditions and obligations contained herein; and is signing this Settlement Agreement and Release voluntarily and of his own free will.

* * *

Police Office Kim will not receive any termination pay, pay for unused sick time, or compensation for any other time that he may have been entitled to except pay for any deferred and/or lagged monies.

* * *

In exchange for the consideration set forth in this Settlement Agreement, Police Officer Kim, . . . hereby releases and forever discharges Nassau County and itsofficers, employees and assigns, . . . of and from all manners of actions, proceedings, causes of action, . . . arising our of any federal, state or city constitution, statute, ordinance, by-law or regulations . . ..

See Rogers Decl., Ex. B. Kim insists that he signed the Release under extreme duress. Id. ¶ 59.

5. Other Incidents Reflecting the Defendants' Alleged Racial Disdain

In the complaint, Kim also alleges that after he was attacked in November 2012, he realized the depth of Monk's racial disdain. Id. ¶ 41. To this end, Kim asserts that he began to recall numerous incidents in which Monk and others humiliated him in front of the entire police precinct. Id. For example, on December 10, 2010, Kim was asked to leave his post to attend to a matter that required Kim to guard a perimeter in search of a suspect. Id. ¶ 100. When Kim's services were no longer needed, he...