Zilioli v. City of N.Y.

LAURA ZILIOLI, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

17cv9495

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 1, 2020

OPINION & ORDER

WILLIAM H. PAULEY III, Senior United States District Judge:

Laura Zilioli brings this federal civil rights action against the City of New York (the "City"), Police Officer Annette Vasquez, and Sergeant John Lugo (together, "Defendants").¹ Zilioli also asserts a state law claim against the City for negligent hiring and supervision. The City and Vasquez move for summary judgment dismissing this action pursuant to Federal Rule of Civil Procedure 56. Zilioli cross-moves for partial summary judgment as to the state law claim. For the reasons that follow, the parties' motions for summary judgment are granted in part and denied in part.

BACKGROUND

I. May 17, 2017 Incident

On May 17, 2017, Zilioli visited the New York City Human Resources Administration office ("HRA" or "HRA office") in Manhattan to pick up a check. (City Defs.' Resps. and Objs. to Pl.'s Statement of Undisputed Facts Pursuant to Local Rule 56.1, ECF No. 104 ("Defs.' 56.1"), ¶¶ 1-2.) When HRA personnel informed Zilioli that her check was unavailable, she became upset and began raising her voice. (Am. Resp. to Defs.' Rule 56.1 Statement and Pl.'s Supp. Rule 56.1 Statement of Undisputed Facts, ECF No. 116 ("Pl.'s 56.1"), ¶¶ 70-71.) Lugo, an HRA Supervising Special Officer, approached Zilioli and asked her to leave the HRA office. (Pl.'s 56.1 ¶ 72.) When Zilioli refused, Lugo—along with Vasquez—handcuffed Zilioli and arrested her for trespass pursuant to New York Penal Law ("N.Y.P.L.") § 140.05. (Pl.'s 56.1 ¶¶ 73-77.)

After escorting Zilioli to the HRA security office, Vasquez searched Zilioli and Lugo conducted a warrant check. (Pl.'s 56.1 ¶¶ 78-79.) Lugo discovered that Zilioli had an active I-card (indicating she was a person of interest in an ongoing criminal investigation) from the New York City Police Department's 6th Precinct and an arrest warrant for failing to appear in Manhattan Criminal Court. (Pl.'s 56.1 ¶ 81.) Lugo directed Vasquez to change into her uniform. (Pl.'s 56.1 ¶ 83.) When Vasquez left the office, Lugo and another security guard were present with Zilioli. (Pl.'s 56.1 ¶ 85.) According to Zilioli, Lugo then dismissed the other security guard so that he was alone with her. (Defs.' 56.1 ¶ 6.) After locking the security office door, Lugo sexually assaulted Zilioli. (Defs.' 56.1 ¶ 7; Pl.'s 56.1 ¶ 87.)

After the assault, Lugo unlocked and opened the security office door. (Pl.'s 56.1 ¶ 88.) When Vasquez returned to the security office, she found Lugo and another security guard present with Zilioli. (Pl.'s 56.1 ¶ 89.) Lugo directed Vasquez to patrol the HRA office. (Pl.'s 56.1 ¶ 90.) When Vasquez returned to the security office for the third time, she found Lugo and Washington Camilo, another security guard, present with Zilioli. (Pl.'s 56.1 ¶ 93.) Vasquez and Captain Kevin Kenniff then escorted Zilioli to Manhattan Criminal Court to answer the outstanding warrant. (Pl.'s 56.1 ¶¶ 92, 95-96.) During her transport, Zilioli never mentioned to Vasquez that Lugo sexually assaulted her. (Pl.'s 56.1 ¶ 97.)

Later that day, Lugo asked Vasquez to prepare an incident report, including information about Zilioli's arrest, detention, and release. (Pl.'s 56.1 ¶¶ 100-01.) After reviewing Vasquez's report, Lugo directed her to re-write it and state specifically that he was never alone with Zilioli. (Pl.'s 56.1 ¶¶ 102-03.) Vasquez discarded her initial report, but did not include that statement in her revised report. (Pl.'s 56.1 ¶¶ 102, 105.) Instead, Vasquez wrote that a security guard, Washington Camilo, was present with Lugo and Zilioli when she returned to the security office after completing her patrol. (Pl.'s 56.1 ¶ 105; Decl. of Bridgette Nunez-Figueroa in Supp. of City Defs.' Mot. for Summ. J., ECF No. 77 ("Nunez-Figueroa Decl."), Ex. R, at DEF007.) At her deposition, Vasquez elaborated: Each time she entered or left the security office a security guard was present with Lugo. (Pl.'s 56.1 ¶¶ 85, 89, 91, 93, 95.) Vasquez did not learn of the sexual assault complaint until after May 17, 2017. (Pl.'s 56.1 ¶¶ 106-07.)

On May 23, 2017, Zilioli filed a complaint against Lugo with HRA's WeCare Program. (Pl.'s 56.1 ¶ 109.) On September 18, 2017, Lugo was arrested and charged with committing a Criminal Sexual Act in the First Degree in violation of N.Y.P.L. § 130.50(1). (Pl.'s 56.1 ¶ 111.) Lugo pled guilty and was sentenced to five years of imprisonment in July 2018. (Defs.' 56.1 ¶ 9; Pl.'s 56.1 ¶¶ 117, 120.) He is currently incarcerated.

II. The City's Hiring Process

At the time Lugo applied for employment, the New York City Department of Citywide Administrative Services ("DCAS") required candidates for the position of Special Officer to complete an application listing all convictions (and/or pending charges), explain any criminal history, affirm the veracity of the application, and acknowledge that that any false statements (or intentional omissions) may subject them to disqualification or prosecution. (Pl.'s 56.1 ¶¶ 7-10.) In his DCAS application, Lugo indicated that he had a May 2008 conviction for disorderly conduct, which was conditionally discharged. (Pl.'s 56.1 ¶ 30.) Lugo explained that this conviction stemmed from an incident in which he was arrested for disorderly conduct in the Bronx for having a loud argument with his son's mother. (Pl.'s 56.1 ¶ 31.) Lugo did not divulge that while he pled to disorderly conduct, he was arrested for Assault in the Third Degree, Resisting Arrest, and Harassment in the Second Degree after striking his son's mother. (Pl.'s 56.1 ¶¶ 31, 36; Decl. of Michael F. Rubin in Supp. of Pl.'s Cross Mot. for Partial Summ. J., ECF No. 86 ("Rubin Decl."), Ex. H., at DEF1468-69.)

Kelly Jones-Alexis, a DCAS associate investigator, reviewed Lugo's application for completeness. (Defs.' 56.1 ¶¶ 17-18, 21.) Consistent with DCAS policy, Jones-Alexis obtained additional criminal history information on Lugo. (Pl.'s 56.1 ¶¶ 11-12, 34-36.) That information included a copy of the criminal complaint against Lugo regarding his May 2008 assault charge. (Pl.'s 56.1 ¶ 36.) After reviewing Lugo's file, Jones-Alexis classified him as "qualified for consideration." (Defs.' 56.1 ¶ 37.)

The parties dispute various aspects of Jones-Alexis's investigation, including: (1) her discretion in making candidate recommendations, (Defs.' 56.1 ¶ 37; Pl.'s 56.1 ¶ 14); (2) whether she noticed any discrepancy in Lugo's application regarding his arrest record, (Defs.' 56.1 ¶¶ 22-25; Pl.'s 56.1 ¶¶ 39, 42); and (3) if she took any action after discovering the discrepancy, (Defs.' 56.1 ¶ 25; Pl.'s Reply to Defs.' Additional Undisputed Facts Pursuant to Local Rule 56.1, ECF No. 107 ("Pl.'s 56.1 Reply"), ¶¶ 68-69, 92-93). Jones-Alexis did not note any discrepancy or false statement in Lugo's application file. (Defs.' 56.1 ¶ 27.)

Thereafter, Lugo was placed in the civil service hiring pool, and following an interview, HRA extended an offer for a Special Officer position subject to his satisfactory completion of the rest of the hiring process. (Pl.'s 56.1 ¶ 44.) HRA conducted an administrative review of Lugo's application because of his prior conviction. (Pl.'s 56.1 ¶¶ 23, 51.) It does not appear that HRA obtained a copy of the May 2008 criminal complaint. (Defs.' 56.1 ¶ 29; Pl.'s 56.1 ¶ 46; Rubin Decl., Ex. L, at DEF256.) HRA Assistant Deputy Commissioner of Police Operations Dexter Freeman ("Assistant Deputy Commissioner") authorized HRA's hiring of Lugo. (Pls.' 56.1 ¶¶ 52-53.) In making that hiring decision, Freeman testified that he only considers criminal convictions in evaluating an applicant's qualifications. (Pls.' 56.1 Reply ¶¶ 106-07.) HRA hired Lugo in September 2012. (Pl.'s 56.1 ¶ 56.)

III. Complaints Against Lugo

On March 6, 2015, HRA's Special Investigations Division received a complaint that Lugo falsely arrested someone and subjected that individual to excessive force. (Pl.'s 56.1 Reply ¶ 110.) HRA did not initiate an investigation of that complaint until March 7, 2017. (Pl.'s 56.1 Reply ¶ 112.) Eight days later, on March 15, 2017, HRA's Special Investigations Division received a second complaint alleging excessive force by Lugo. (Pl.'s 56.1 Reply ¶ 113.) Less than a month later, on April 14, 2017, a third complaint was lodged against Lugo and other security officers, alleging excessive force in effecting an arrest at the HRA office. (Pl.'s 56.1 Reply ¶ 114.) On April 25, 2017, Lugo was interviewed concerning the March 7 and 15 complaints. (Pl.'s 56.1 Reply ¶ 115.) On April 28, 2017, a fourth complaint was filed against Lugo alleging another false arrest. (Rubin Decl., Ex. P, at DEF524-28.) On June 12, 2017, Lugo was interviewed concerning the April 14 and 25 complaints. (Pl.'s 56.1 Reply ¶ 116; Rubin Decl., Ex. P, at DEF526.) All of these complaints were closed as "unsubstantiated" because of a lack of evidence or the unwillingness of victims to communicate with investigators. (Pl.'s 56.1 Reply ¶¶ 117-18; Rubin Decl., Ex. P, at DEF527.)

Zilioli advances two claims: (1) a federal claim against Defendants for conspiracy to violate her civil rights under 42 U.S.C. § 1983, and (2) a state law claim against the City for negligent hiring and supervision. (Third Am. Compl., ECF No. 95 ("TAC"), ¶¶ 54-60.)

DISCUSSION

I. Legal Standard

Summary judgment is proper only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Baez v. JetBlue Airways Corp., 793 F.3d 269, 274 (2d Cir. 2015) (quotation marks omitted). This Court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent....