Opinion
01 Civ. 10627 (CBM)
April 6, 2004
Clifford L. Davis, White Plains, NY, for Plaintiff
Paul Marks, NY, for Michael Cardozo, Corporation
OPINION
Plaintiff Eileen Barry, a sergeant in the New York City Police Department, charges the Department and several of its officers with retaliating against her in violation of her First Amendment rights. She claims mat after exposing police misconduct within a unit to which she had newly been appointed supervisor, defendants first asked her to accept responsibility for the unit's problems to protect previous supervisors who had since been promoted within the Department. When she refused, she claims that defendants retaliated against her by, inter alia, stripping plaintiff of her supervisory responsibilities, transferring her to lesser positions, and bringing disciplinary charges, against her. She further alleges that the retaliation was a manifestation of the Department's unwritten but pervasive custom of punishing speak out about police misconduct and encouraging, if not facilitating, silence among officers. Defendants move for summary judgment on the grounds that plaintiff cannot make out a prima facie case of First Amendment retaliation or establish municipal liability. Defendant Charles Campisi moves for summary judgment on the grounds that he was not personally involved in plaintiffs alleged constitutional deprivations. For the reasons stated below, defendants' motion is DENIED in part and GRANTED in part.
BACKGROUND
A. Facts
On a motion for summary judgment, the court should view the facts in the light most favorable to the plaintiff and resolves all factual disputes in plaintiffs favor. See Fed.R.Civ.P. 56(c);Mandell v. County of Suffolk, 316 F.3d 368, 374 (2d Cir. 2003). The following facts are construed accordingly.
Plaintiff Eileen Barry was appointed as a police officer in 1988 and joined the New York City Police Department (hereinafter the "NYPD" or the "Department"). She was promoted to sergeant in 1994, at which time she served as a patrol sergeant in the 101st Precinct, supervising up to eighteen police officers at a time. Shortly thereafter, she became a supervisor in the Precinct's Anti-Crime Unit, supervising between four and eight police officers. See Pl.'s Local Rule 56.1 Statement, p. 1. Barry remained in the 101* Precinct until May of 1995 when she became the chauffeur and administrative assistant to Chief of Patrol Wilbur Chapmun. Although plaintiff evaluated one or two officers as the Chiefs assistant, "in that office there was really no need for [that type of] supervisory work." Dep. of E. Barry, at 30. In March of 1996, plaintiff Barry transferred to the 105th Precinct where she served again as a patrol supervisor, overseeing up to twenty officers at a time. In March of 1997, plaintiff became a patrol sergeant in the Queens South Task Force. In that capacity, she supervised officers who were deployed for large-scale events.
On November 30, 1998, plaintiff became the supervisor of the Truancy Unit in the Patrol Borough Queens South Task Force. The purpose of the Unit was to pick up students who were supposed to be in school and bring them back to their school. Pl.'s Affidavit at ¶ 5. As the supervisor, plaintiff conducted limited administrative duties and supervised five officers on truancy patrol. She reported to Captain Robert Mullane, Commanding Officer of the Queens South Task Force. Id. She worked day hours, Monday through Friday, with weekends off. Pl's Affidavit at ¶ 5.
On January 8, 1999, Police Officer Eugene Harty, one of the officers in the Unit, disclosed to plaintiff that he and other officers in the Unit had recently falsified information on truancy reports and forged the signature of school officials. Pl.'s Affidavit at ¶ 6; Dep. of E. Barry, at 98. Despite Harty's express wishes to the contrary, plaintiff immediately notified Lieutenant Daniel Mazza about what Harty had told her. On this same day, Harty's information was communicated to Integrity Control Officer Kelley Ferrazzolli, Captain Robert Mullane, and the Internal Affairs Bureau. Id. As a result, at the command of defendant Captain Gary Reiss, the Queens South Investigations Unit undertook an investigation into possible falsification of reports within the Unit, with the focus of the investigation on the time period from the December 1998 until early January, 1999. Dep. of G. Reiss, at 15-16. Captain Reiss assigned defendant Sergeant Anthony Petro to the investigation. Dep. of A. Petro, at 5-7. Captain Reiss sat in on Petro's interviews of officers in the Unit, during which they learned that previous Truancy Unit supervisors put pressure on officers to increase the number of truants reported each day, and that officers had falsified reports prior to plaintiffs arrival.
When patrol officers returned a truant child to school, they had to obtain a signature from a school official to this effect.
According to plaintiff, in April of 1999, she had a private conversation with Captain Reiss in which he stated that he and Assistant Chief Joseph Fox, Commanding Officer of Patrol Borough Queens South, realized that plaintiff had not engaged in any wrongdoing at the Unit, but that she was going to have to "take a hit" so that officers who had previously supervised the Unit and were now "higher up's" would not be injured by the investigation's findings. Pl's Affidavit at ¶ 10. He offered her a "command discipline," the lowest form of discipline, thereby allowing the Department to close the examination with an admission of wrongdoing on her part. Plaintiff refused Captain Reiss's offer. Id. at ¶ 10-11.
Plaintiff further alleges that in the spring of 1999, her "duties were virtually to do nothing but to report to work." Id. at ¶ 12. Specifically, she claims that Captain Mullane stripped her of her responsibilities by limiting her to administrative work, removing her from patrol and reducing her supervisory role. Id. at ¶ 12; Dep. of E. Barry, at 47-51.
On May 8, 1999, at the recommendation of Captain Reiss, plaintiff was served with a disciplinary charge alleging that she failed to supervise the Truancy Unit from December 1998 through January 1999. Dep. of G. Reiss, at 45,73-74; Def.'s Ex. D. Captain Mullane transferred plaintiff from the Truancy Unit to the Queens South Task Force in September, 1999. Assistant Chief Joseph Fox was made aware of the transfer. According to plaintiff, Captain Mullane limited her duties to administrative tasks, she went out on patrol on an infrequent basis, and no one reported to her. Dep. of E. Barry, at 53-54,59; Pl.'s Affidavit at ¶ 13-15. She worked from 10 a.m. until 6 p.m., with Fridays and Saturdays off. Pl's Affidavit at ¶ 15. Shortly after the September transfer, she was assigned to security of the Task Force building, with five officers reporting to plaintiff and another sergeant initially, and then later to a third sergeant as well. Id. Plaintiff worked the midnight tour with rotating days off. Id.
On December 3, 1999, plaintiff filed a complaint with the Department's Internal Affairs Bureau, the Chief of which is defendant Charles Campisi. Def.'s Ex. I. Her Internal Affairs complaint charges that the Patrol Borough Queens South Investigations Unit improperly focused its investigation of the Truancy Unit on the time during which she was the supervisor, that the disciplinary charges brought against her for failure to supervise the Truancy Unit were unfair, that she was retaliated against by being reprimanded for going to church on personal time, and that members of the Department told her to stop talking about what happened at the Truancy Unit. Id. On March 17, 2000, the Internal Affairs Bureau issued an investigative findings report. According to the report, in investigating plaintiffs complaint, the Bureau interviewed Sergeant Petro, plaintiff, the officers assigned to the Truancy Unit, and Captain Reiss, in addition to throughly reviewing the investigation conducted by the Queens South Investigations Unit. Id. Based on its review, the Bureau concluded that Sergeant Petro was exonerated from all allegations of wrongdoing, Barry's charges regarding the unfairness of the disciplinary charges were unfounded, her retaliation claim was unsubstantiated, and her allegation that the Department encouraged was unsubstantiated. Id.
On August 28 and 29, 2000, the Assistant Deputy Commissioner of Trials, Robert W. Vinal, held a hearing on the disciplinary charges brought against plaintiff for her alleged failure to supervise the Truancy Unit. On November 1, 2000, Commissioner Vinal found Barry not guilty of the charges, stating: "It is clear that the instant charge was brought solely as a result of the discovery that all of the officers (with one exception) assigned to the TU were engaged in a conspiracy to inflate TU enforcement statistics by preparing false YRR's using fictitious names and addresses, thus allowing TU officers to take credit for the apprehension of non-existent truants." Def.'s Ex. E. at 12. He goes on to state: "I find the Respondent Not Guilty as charged because the Department did not prove that the Respondent failed to take required supervisory actions which could have resulted in the discovery of this conspiracy before Harty disclosed its existence to her. Moreover, it is clear upon learning this serious allegation, Respondent made immediate and appropriate notifications." Id. The Commissioner made special note of the fact that officers had falsified in the months before Barry became the Supervisor of the Truancy Unit and that she had only been serving as supervisor for five weeks when she became aware of the problem. Id. On November 14, 2000, Police Commissioner Bernard Kerik approved the Commissioner's finding of "not guilty." Id. at 14.
On August 29, 2001, plaintiff left the Queens South Task Force and became one of the sergeants responsible for security at Police Headquarters. There, she was the immediate supervisor of a squad of thirteen police officers, with roughly 50 civilian officers, police officers, and cadets also reporting to her. On December 5, 2001, plaintiff transferred to Queens South Borough Office and became the Commanding Officer of the COMPSTAT and PIMS unit which was responsible for collecting statistical information on criminal activity within the Queens South area. In that capacity, plaintiff supervised two detectives and five police officers. During her tenure at Headquarters, one of plaintiffs detectives, Detective Sheryle Schiefer, filed an internal complaint with the Office of Equal Employment and Internal Affairs in which she alleged that plaintiff made racially derogatory remarks about officers at a promotional ceremony. As a result of this complaint, in April of 2002, plaintiff was transferred from her position at Headquarters to the Evidence Collection Unit where she was an administrative sergeant Plaintiff supervised one officer in charge of administrative tasks, although plaintiffs hours and the subordinate officer's hours did not precisely coincide and, according to plaintiff, her supervision was very limited. Dep. of E. Barry, at 74-77. Plaintiff left the Evidence Collection Unit around February 1, 2003 on maternity leave, and then she began a one-year leave for child care on April 22, 2003.
The record on this point is a little ambiguous. In plaintiffs deposition, she testified that she gave birth to a child on February 1, 2003 and on April 22, 2003, she went on child care leave for a year. Before April 22, 2003, she was on maternity leave and then took all of her vacation time i4up front." Dep. of E. Barry, at 21. In her opposition to defendants' Rule 56.1 statement, citing her affidavit, plaintiff avers that she "has been out on sick and family leave since November 2002" (although the court cannot locate where in her affidavit plaintiff provides information to this effect).
In July of 2003, plaintiff was served with disciplinary charges arising out of Detective Schiefer's complaint with the Office of Equal Employment. Although the Office of Equal Employment ultimately determined that plaintiff was not guilty of having made racially suspect statements in the work place, plaintiff was given a command discipline charge for "swaggering" in and out of her office. The charge provided that the Department would not take action for the "swaggering" violation until plaintiff returns to work in April, 2004.
2. Plaintiff's Allegations
Plaintiff filed this lawsuit in November of 2001. She charges defendants New York City Police Department, Howard Safir as Commissioner of the Police Department, Chief Charles Campisi, Captain Gary Reiss, Chief Joseph Fox, Captain Robert Mullane, and Sergeant Anthony Petro with retaliating against her for exercising her First Amendment right to expose police misconduct. Specifically, she claims that defendants first asked her to accept the blame for the falsification of reports by Truancy Unit officers, despite their knowledge that officers had falsified reports before she became the supervisor, as a means to shelter these officers from allegations of wrongdoing. When she refused to do so, defendants brought disciplinary charges against her, conducted a cursory investigation into the Unit that was specifically designed to shield previous supervisors from injury and punish plaintiff for having spoken out about the Unit's corruption, stripped her of her material responsibilities, and transferred her to comparatively inferior positions within the Department. Plaintiff further alleges that as a result of speaking out about the corruption within the Truancy Unit, Lieutenant Ferrazzoli in the Queens Task Force stopped speaking to her, officers referred to plaintiff as a "rat," her efforts to discipline officers under her command were interfered with, a dispatcher ignored her request for back-up she was not awarded the position of Training Sergeant in the Queens Task Forth upon application, and she was transferred to positions in which she had little to no authority. The cumulative effect of these various acts was to diminish and foreclose plaintiffs opportunities for occupational advancement within the NYPD. For these retaliatory acts and the concomitant violation of her First Amendment rights, Plaintiff seeks compensatory and punitive damages as relief.
Plaintiff charges Safir "as Commissioner of New York City Police Department" but she does not similarly charge the other individual defendants with an explicit reference to their official titles. The court assumes, then, that plaintiffs charge against Safir is in his official capacity whereas plaintiffs charge against the other named defendants is in their personal capacities.
ISSUE
Defendants move for summary judgment on the grounds that plaintiff cannot a) make out a case for retaliation, b) show that an official custom or policy caused the alleged violation of her First Amendment rights or the retaliation she suffered, and c) establish defendant Campisi's personal involvement in the acts in question.
STANDARD ON SUMMARY JUDGMENT
Under Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith" if it is shown that `there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material fact exists, a plaintiff "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "Conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages. Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the initial burden is met, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).
ANALYSIS
A. Plaintiff's Prima Facie Case of First Amendment Retaliation
"[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) citing Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Government employees have a right to be free from retaliatory punishment based upon the content of their speech. Id. However, an employee's First Amendment rights are not absolute. Recognizing that the government has "greater leeway to control employees' speech that threatens to undermine its ability to perform its legitimate functions," Lewis v. Cohen, 165 F.3d 154, 161 (2d Cir. 1999), courts balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."Pickering, 391 U.S. at 568, 88 S.Ct. 1731.
Before a court reaches this balancing test, a plaintiff advancing a First Amendment retaliation claim against a government defendant must first demonstrate, by a preponderance of the evidence that 1) the speech in question was "made as a citizen on matters of public concern rather than as an employee on matters of personal interest," Grillo v. N.Y. City Transit Auth., 291 F.3d 231, 235 (2d Cir. 2002); 2) she suffered an adverse employment action, Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2001); and 3) the speech was at least a substantial or motivating factor in the adverse employment action, Sheppard v. Beerman, 317 F.3d 351, 355 (2d Cir. 2003). See also Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Once a plaintiff satisfies this three-part test, the government may avoid liability by showing either 1) it would have taken the same adverse action regardless of the protected speech, or 2) the plaintiffs expression was likely to disrupt the government's activities and the likely disruption was sufficient to outweigh the plaintiffs First Amendment expression. Cobb v. Pozzi 352 F.3d 79, 91 (2d Cir. 2003) citing Mandell, 316 F.3d at 382-83 (citing Morris v. Landau, 196 F.3d 102, 110 (2d Cir. 1999) and Locurto v. Safir 264 F.3d 154, 166 (2d Cir. 2001)).
The Supreme Court has suggested that a First Amendment retaliation claim may prove susceptible to summary judgment in cases where the plaintiff cannot establish the threshold showing of retaliation. See Locurto v. Safir, 264 F.3d at 168 citing Crawford-El v. Britton, 523 U.S. 574, 585, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). Here, defendants only challenge the merits of plaintiff's claim on the grounds that plaintiff cannot make out the second and third elements of a prima facie case; they do not reach issues of possible disruption or whether the NYPD would have taken the same actions regardless of her speech, and they assume for the purposes of their motion that plaintiff has satisfied the first prong of the prima facie case. See Def.'s Memorandum of Law, at 3. Accordingly, the court focuses its inquiry on whether plaintiff has raised a triable issue of fact as to whether she suffered an adverse employment action and whether the adverse action was causally related to her speech. I. Adverse Employment Action
The Second Circuit broadly defines what constitutes an adverse employment action, holding that it is a "materially adverse change in the terms and conditions of employment." Galabva v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation omitted). "To be materially adverse' a change in working conditions must be `more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Id., quoting Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand. See Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir. 1995) citing Rutan v. Republican Party, 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). While a plaintiffs subjective perception that a demotion has occurred is not enough, a transfer is also an adverse employment action if the reassignment is, in truth, a demotion. Garber v. New York City Police Dept., 159 F.3d 1346, (2d Cir. 1998) citing Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996), cert. denied, 522 U.S. 816, 118 S.Ct. 64, 139 L.Ed.2d 26 (1997). The question is whether the transfer involves a dramatic shift downward in skill level required to perform job responsibilities, considering also allegations of harm to plaintiffs reputation, opportunities for advancement, and earning potential. Id. citing Bernheim v. Litt, 79 F.3d 318, 325 (2d Cir. 1996) and Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir. 1994). "Absent a change in job description, job title, days and hours worked, salary, benefits, or opportunities for promotion, we would be hard pressed to characterize plaintiffs change in position as a demotion." Id. Finally, lesser actions or seemingly minor incidents can also be considered adverse employment actions once they reach a critical mass of unreasonable inferiority. See Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) citing Bernheim, 79 F.3d at 324-26; Morris, 196 F.3d at 110.
Here, plaintiff went from being in charge of the Truancy Unit to first having her supervisory responsibilities reduced to administrative work within that same position, to then being transferred to the Queens South Task Force where she worked midnights instead of days, her substantive work required less skill, and, as a result, her opportunities for advancement were limited by the concomitant reduction in supervisory responsibilities. As such, plaintiff has presented sufficient evidence that her transfer from the Truancy Unit to the Task Force in September of 1999 was a true demotion and therefore an adverse employment action.See Garber v. New York City Police Dept., 159 F.3d 1346 (2d Cir. 1998) citing Fyfe v. Curlee, 902 F.2d 401, 405 (5th Cir. 1990), cert denied, 498 U.S. 940, 111 S.Ct. 346, 112 L.Ed.2d 310 (1990) (a transfer from a "productive, satisfying position to a menial make-work one" is an adverse employment action for the purposes of a § 1983 First Amendment retaliation claim). Further, plaintiffs affidavit presents a series of events that occurred after she exposed the police misconduct within the Truancy Unit, including the commencement of a disciplinary action, being labeled a "rat" by other officers, officers ignoring her orders, a Lieutenant's refusal to speak to her, a dispatcher's refusal to send back-up at plaintiffs request, and denial of an application for a position as Training Sergeant. These lesser incidents, when considered as a whole, reach a critical mass of inferiority suggesting an adverse employment action. See Moskowitz v. Coscette, 2001 WL 51009, at 2 (2d Cir., Jan. 22, 2001) (jury had sufficient basis to conclude plaintiff suffered an adverse employment actions where defendants commenced disciplinary proceedings against plaintiff, assigned him to desk duty, denied him promotion to sergeant, and subjected him to negative evaluations); Philips v. Bowen, 278 F.3d at 110 (same, where defendants refused to provide plaintiff with a bullet-proof vest, did not provide plaintiff with proper instructions about a prisoner's transfer, and subjected her to humiliating instructions about how to use a time clock); Bernheim, 79 F.3d at 327 (finding an adverse employment action where plaintiff was subject to negative evaluation letters, express accusations of lying, assignment to lunchroom duty, reduction in class preparation time, failure to process plaintiffs insurance forms, transfer from library to class room as an alleged demotion, and assignment to classroom in a location aggravating teacher's disabilities). Construing the factual ambiguities in plaintiffs favor, plaintiff raises a triable issue of fact as to whether she suffered an adverse employment action.
2. Causal Relationship Between Speech and Adverse Action
Turning to the third prong of the prima facie case of First Amendment retaliation, a plaintiff can establish a causal connection between her speech and the adverse employment action through indirect evidence that "the protected activity was closely followed in time by the adverse [employment action]," Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996), or by direct evidence of retaliatory animus,Morris, 196 F.3d at 110. In either case, "[t]he causal connection must be sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action, that is to say, the adverse employment action would not have been taken absent the employee's protected speech." Morris, 196 F.3d at 110. A plaintiff cannot rely on conclusory allegations of retaliatory motive, but must instead produce "some tangible proof to demonstrate that [her] version of what occurred was not imaginary." Id. at 111. Summary judgment is precluded on this issue where questions regarding an employer's motive predominate the inquiry as to how important a role the protected speech played in the adverse employment action. Id. at 110, citing Piesco v. City of New York, 933 F.2d 1149, 1155 (2d Cir. 1991).
Because retaliatory motive is rarely proven by direct evidence,Housing Works. Inc. v. City of New York, 72 F. Supp.2d 402, 422 (S.D.N.Y. 1999), appeal dismissed, 203 F.3d 176 (2d Cir. 2000), most plaintiffs rely on circumstantial evidence to establish causation."Mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action [can be accepted as] sufficient evidence of causality . . . [but] the temporal proximity must be very close." Knight v. City of New York 2004 WL 329862, at 8 (S.D.N.Y., Feb. 20, 2004) citing Clark County Sch. Dist. v. Breeden. 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Courts have not, however, drawn a bright line to define the outer limit beyond which a temporal relationship is too attenuated to establish the causal link.Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001).
Plaintiff Barry alleges, and defendants do not dispute, that after plaintiff spoke out about the falsification of reports within the Unit, defendants considerably diminished her supervisory responsibilities within three months, served plaintiff with disciplinary charges within four months, and transferred plaintiff out of her position as Supervisor within eight months. The time gap between her speech and the adverse acts is close enough to warrant an inference of a causal relationship. See Morris, 196 F.3d 102 (two years between protected speech and adverse employment action suggests inference of causation); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980) (eight month gap between protected speech and adverse action establishes inference of causation); Suggs v. Port Auth. of N.Y. N J. 1999 WL 269905, at 6 (S.D.N.Y. May 4, 1999) (six months between filing of EEOC complaint and termination is sufficient); Bernhardt v. Interbank of N.Y., 18 F. Supp.2d 218, 226 (E.D.N.Y. 1998) (eleven months is close enough to establish an inference that plaintiffs speech was causally related to plaintiffs termination).
Plaintiff has also presented direct evidence of retaliatory animus by exposing that Captain Reiss's investigation into the falsification of records within the Unit focused on the time frame during which plaintiff was the supervisor, despite the fact that he and Officer Petro learned that Truancy Unit officers falsified reports prior to plaintiffs arrival and that previous supervisors imposed heightened reporting requirements. The logical outgrowth of the investigation's focus was that plaintiff, and only plaintiff, could be charged with failing to supervise the Unit as a result of the investigation. In other words, defendants' investigation suggests they may have been more concerned about punishing plaintiff for having exposed corruption within the Unit than they were about addressing the problem at hand. See Johnson v. Ganim, 342 F.3d 105 (2d Cir. 2003) (the fact that defendants investigated whether plaintiffs letter criticizing defendants violated city rules, instead of determining the truth of the allegations made, may indicate that the defendants used plaintiffs letter as an opportunity to terminate an employee who had been outspoken against the administration).
In light of both direct and indirect evidence of retaliatory animus, plaintiff has presented sufficient proof of a causal relationship to survive defendants' motion for summary judgment on this basis. See Birmingham v. Odgen, 70 F. Supp.2d 353 (S.D.N.Y. 1999) (plaintiff established the requisite causal connection to withstand summary judgment by showing, through circumstantial evidence, that defendants excluded him from regular police department meetings, excluded him from afternoon car rides with the Bureau Commander and the Chief, and trumped up a domestic abuse complaint after plaintiff criticized the police department);Jeffes v. Barnes, 20 F. Supp.2d 204, 214 (N.D.N.Y. 1998) (plaintiffs allegations that after he spoke out about police misconduct, officers called him a "rat" and interrupted his radio communications raised a genuine issue of fact as to whether his speech was a substantial motivating factor in the retaliation he suffered).
B. Municipal Liability
While plaintiff Barry has shown a prima facie case of First Amendment retaliation at the summary judgment stage, she must also show that her suit is sustainable under 42 U.S.C. § 1983, the statute that provides the procedural mechanism for asserting federal rights. Section 1983 provides in pertinent part:
Every person, who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Barry sues the NYPD, several officers of the NYPD, and former Police Commissioner Safir in his official capacity.
With respect to the NYPD, Chapter 17, section 396 of the New York City Charter provides that ff[a]ll 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 that of any agency except where otherwise provided by law." As an agency of the City of New York, the NYPD is a non-suable entity, Moms v. New York City Police Dept., 1999 WL 1201732, at 3 (S.D.N.Y. Dec. 14, 1999), and thus all of plaintiffs claims against the NYPD are dismissed with prejudice. See Davis v. City of New York, 2000 WL 1877045 (S.D.N.Y., Dec. 27, 2000).
With respect to Commissioner Safir, Section 1983 actions against officials in their official capacities "generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 167 n. 13, 105 S.Ct. 3099, 87 Led.2d 114 (1985). Plaintiffs suit against Safir, therefore, is effectively a suit against the City of New York. See Walton v. Safir, 122 F. Supp.2d 466, 477 (S.D.N.Y. 2000) (plaintiffs claim against Police Commissioner Safir is duplicative of her claim against the City of New York); Davis v. City of New York, 2000 WL 1877045, at 8 (an official-capacity suit against former Commissioner Safir is deemed a claim against the City itself). Thus, because a municipality cannot be held liable solely on the basis of respondeat superior under Section 1983, Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018 (1978), plaintiff must show that a New York City policy, custom, pattern or practice played a role in the violation of her First Amendment rights. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).
The plaintiff in a Section 1983 claim bears the burden of establishing municipal liability. See Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987). To satisfy this burden, a plaintiff cannot rely on a conclusory assertion that the municipality has such a custom or policy, Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993). She must proffer direct or circumstantial evidence that suggests a pattern of misconduct from which it may be inferred that decision makers approved of or acquiesced in the unconstitutional acts.Walker v. City of New York, 974 F.2d 293, 300 (2d Cir. 1992),cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993). See also Reinaldo Morales Dynamic Keys v. New York Cit Police Dept., 97 Civ. 7151, 2000 WL 10436, at 2 (S.D.N.Y. Jan. 6, 2000) (the plaintiff must allege "some facts that make possible the inference of a policy giving rise to municipal liability") A single incident, however, is generally insufficient to demonstrate municipal policy. See, e.g., Fahle v. Braslow 913 F. Supp. 145, 150-51 (E.D.N.Y. 1996) Moreover, because the analysis focuses on responsibility, municipal liability does not attach unless the municipality's policies were the "moving force" behind the constitutional violations. Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1389, 137 L.Ed.2d 626 (1997). Thus, there must be a causal link between the custom or policy and the alleged wrongdoing in plaintiffs case. See Vippolis, 768 F.2d at 44 (2d Cir. 1985) (citation omitted). "[C]ourts must apply `rigorous standards of culpability and causation . . . to ensure that' the indirect-causation theory not result in the municipality's being `held liable solely for the actions of its employee." Jeffes, 208 F.3d at 61 quoting Brown, 520 U.S. at 405, 117 S.Ct. 1382.
There are four situations in which a municipality can be held liable under Section 1983: (1) an officially promulgated policy endorsed or ordered by the municipality, Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); (2) a custom or practice that is so pervasive and widespread that the municipality had either actual or constructive knowledge of it, City of St. Louis v. Praprotnik 485 U.S. 112, 130, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988);Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); (3) actions taken or decisions made by the municipal employee who, as a matter of state law, is responsible for establishing municipal policies with respect to the area in which the action is taken, McMillian v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734, 1736, 138 L.Ed.2d 1 (1997); Praprotnik, 485 U.S. at 129-30, 108 S.Ct. 915; Pembaur, 475 U.S. at 480-83, 106 S.Ct. 1292; or (4) where the failure of the municipality to train its employees rises to the level of deliberate indifference to the constitutional rights of others, City of Canton v. Harris, 489 U.S. 378, 385 (1989); Walker v. City of New York, 974 F.2d at 297.
Here, plaintiff has not offered any evidence that New York City's liability rests on a formal, official policy endorsing or sanctioning retaliation against officers who expose corruption within the NYPD or otherwise exercise their First Amendment rights, nor does her Complaint suggest that the constitutional violation in question stemmed from the City's failure to train members of the Department. Accordingly, defendants9 summary judgment motion focuses on the second and third bases for finding Monell liability. They argue that plaintiff cannot prove a custom of retaliation so widespread that it constitutes permanent practice, nor can she show that former Commissioner Safir's role in the alleged retaliation she suffered is sufficient to warrant a finding of municipal liability on this basis. The court analyzes the two arguments in turn.
1. Liability Based on Custom of Retaliation
Plaintiffs central hook for establishing municipal liability rests on her claim that the actions taken against her were a manifestation of the NYPD's unofficial policy or custom known as the "blue wall of silence."See Pl.'s Amended Compl. at ¶ 50 ("The New York City Police Department is responsible for the actions of the Defendants here in (sic) that the New York City Police Department has an unofficial policy or custom to punish `whistleblowers' and not to engage in thorough investigations to determine whether high ranking officials are responsible for corruption or lack of supervision"). According to plaintiff, the "blue wall of silence" discourages officers from reporting other officers' mistakes and subjects officers who speak out about police misconduct to retaliation. See Affidavit of E. Barry at ¶ 2 (`The officers of the New York City Police Department engaged in the `blue wall of silence', police officers covering up for each other, in which I was punished for bringing to the attention of others corruption and criminal activity within my unit"), at ¶ 3 1 (officers who come forward to expose corruption break the blue wall of silence), at ¶ 46 (the blue wall of silence operates to coverup wrongdoing by officers within the Department).
"The policy or custom used to anchor [municipal] liability need not be contained in an explicitly adopted rule or regulation." Sorlucco. v. New York City Police Dept., 971 F.2d 864, 871 (2d Cir. 1992). Instead, a plaintiff can show that practices are so persistent, widespread, and permanent that they constitute a custom or usage with the force of law. Id. at 871. However, "before the actions of subordinate city employees can give rise to section 1983 municipal liability, their discriminatory practice must be so manifest as to imply the constructive acquiescence of senior policy-making officials."Id. (internal quotations and citations omitted). See also Praprotnik, 485 U.S. at 130. Further, a plaintiff must show a causal link between the municipal policy or custom and the alleged constitutional deprivation alleged. See Loren v. Lew, 2003 WL 1702004, at 9 (S.D.N.Y. Mar. 31, 2003) (even if plaintiffs could show a municipal policy or custom, they do not demonstrate a relationship between their allegedly retaliatory termination and the municipal policy or custom) citing City of Canton v. Harris, 489 U.S. at 385;White-Ruiz v. City of New York, 983 F. Supp. 365, 391 (S.D.N.Y. 1997) (having shown a municipal policy or custom of retaliation, plaintiff must next show that the policy or custom caused her constitutional injury).
Here, as previously discussed, the evidence in the record suggests that Captain Reiss structured the investigation of the Unit in such a fashion as to insulate previous Truancy Unit supervisors from culpability and to punish plaintiff for having exposed officer misconduct within the Unit. The nature of this investigation is entirely in keeping with plaintiffs depiction of the "blue wall of silence."
Second, plaintiff offers the depositions of Officers Harty and Hynes as proof of the blue wall of silence. Officer Harty testifies that he asked Barry not to disclose the information he relayed to her because if other officers learned that Harty had spoken out about wrongdoing within the Unit, he "would have been pretty much an outcast." Dep. of E. Harty, at 36. According to Harty, the "code among police officers that you don't give up other police officers" is known as the "blue wall of silence."Id. at 36-37. After the Unit came under investigation for falsification of records, but before the other Unit officers knew Harty was the informant, Harty and the other officers met at a bar after hours. At this meeting, they agreed that in response to any official inquiries relating to truancy reports, they would each "deny any wrongdoing" by alleging that the students gave the officers the wrong names.Id. at 37, 42. When asked whether the plan was "part of the code that all the officers would stick together, and that if they stuck together, nothing would happen," Officer Harty responded, "[y]eah, I guess so." Id., at 45. He further testified that Barry broke the blue wall of silence by exposing the corruption within the Unit and that he knew that a lot of officers "wouldn't have been happy with her" for doing so. Id. at 53-54. Harty faced his own repercussions for having spoken out; he testified that an officer approached him and called him "whiskers," thereby implying that Harty was a "rat."Id. at 73. While Officer Hynes testified that there is_no policy among officers to abstain from ratting on each other, Dep. of T. Hynes at 30, he stated that he has heard of the "blue wall of silence" and understands it to mean "looking out for other cops." He further testified that he believes that cops should look out for each other and that he has not spoken to Officer Harty after he learned that Harty told Barry about corruption within the Unit. Id. at 30-31. He was also present at the same after-hours meeting at the bar and stated that he was ready to engage in the blue wall of silence if he had to. Id. at 31.
Third, plaintiff avers that after she exposed the problems within the Unit, in addition to the a4verse employment actions discussed above, Captain Reiss asked her to accept the blame for other officers having falsified reports by way of a command discipline so that other officers of increased rank and status would not be damaged by the investigation. Pl's Affidavit at ¶ 10. Defendants do not refute this allegation. She also maintains that after speaking out, Lieutenant Kelly Ferrazolli refused to speak with her, Officer John Ryan and Lieutenant Bono called her a "rat," on at least four occasions plaintiffs supervisors interfered with her ability to discipline officers reporting to plaintiff, plaintiff radioed for back-up in the Spring of 2000 and her request was ignored, she was investigated for wrongdoing for going to church on her personal time, and she was rejected for the position of Training Sergeant.
Finally, plaintiff invokes Ruiz v. City of New York, 1996 WL 603983 (S.D.N.Y., Oct. 22, 1996), and its discussion of the report of the New York City Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department (hereinafter, the "Mollen Report"). In Ruiz, the plaintiff alleged that after she reported an instance of police misconduct by a fellow officer, other officers retaliated against her pursuant to the "blue wall of silence."Id. at 8. The court denied summary judgment to defendants on the issue of municipal liability, taking into account the Mollen Report's findings to find that the plaintiff established a genuine issue of triable fact as to whether the blue wall of silence constitutes municipal policy or custom. The Report describes a pattern of retaliation against officers in the NYPD who break the code of silence as a matter of police culture and a related practice among Department Commissioners and their policymaking subordinates of both shutting their eyes to the blue wall of silence and actively encouraging its practice. Here, the plaintiff cites extensively from Ruiz and the Report, arguing that this court should follow Ruiz and find the Report admissible evidence as to its factual findings.
Unlike other cases in which courts have found insufficient evidence of a custom of retaliation, plaintiffs witnesses speak from firsthand experience about the blue wall of silence and plaintiff alleges to have suffered a wide range of retaliatory acts as opposed to one discrete instance of retaliation. See Davis v. City of New York, 228 F. Supp.2d 327 (S.D.N.Y. 2002) (holding that there was insufficient evidence to support the jury's finding of a custom of police department retaliation because plaintiffs witnesses had never been personally retaliated against, the two cases plaintiff introduced to establish the custom were inapposite, leaving the jury with only one instance of retaliation from which to infer an unconstitutional custom). Hynes and Harty's testimony further corroborates the notion that the retaliation plaintiff allegedly suffered was not unique to her. See Birmingham v. Ogden, 70 F. Supp.2d 353 (S.D.N.Y. 2003) (plaintiff alleged that the police department fired him on the basis of his outspoken criticism, but without any evidence of a broader practice of retaliation, the only, fair inference is that what happened to plaintiff was an example of a personal assault on him by subordinate officers). Moreover, in contradistinction to the cases defendants cite in defense of their claim that the court should disregard the factual findings of the Mollen Report, here, plaintiff complains of acts that are of the precise nature as the customs and practices described in the Report. As such, the Report is admissible with regard to its factual findings. See White-Ruiz v. City of New York, 1996 WL 603983,8-10 citing Ariza v. City of New York, 1996 WL 118535 (E.D.N.Y., Mar. 7, 1996) (relying in part on the Mollen Report in denying summary judgment to defendants where plaintiff alleged a persistent practice of retaliation for reporting police misconduct). On balance, in light of the evidence before the court, a reasonable jury could find that a widespread custom of retaliating against officers who expose police misconduct, with officials willfully ignoring if not facilitating the practice, pervades the NYPD.See Wise v. New York City Police Dept., 928 F. Supp. 355 (S.D.N.Y. 1996) (a triable issue of fact existed where plaintiff allegaed that a wall of silence prevents female officers from speaking out about harassment, another officer told her not to complain about sexual harassment because she would be ostracized, officers in the Precinct ceased speaking to her after she complained, she was yelled at for filing a complaint, and she was subject to a retaliatory transfer).
2. Policymaker Liability
In the alternative, defendants are not entitled to summary judgment because the evidence before the court is insufficient to warrant the court's final determination as to whether New York City is liable on a separate theory of municipal liability.
Even if a plaintiff cannot show the existence of an unconstitutional municipal policy or custom, a municipality may also be subject to liability for the single act of an official with final-decision making authority with respect to the act in question. Pembaur, 475 U.S. at 481,106 S.Ct. 1292 citing Oklahoma City, 471 U.S. at 822-24,105 S.Ct. 2427. Whether the official has final policymaking authority is a legal question for the court to determine on the basis of state and local law and custom or usage having the force of law.Jeffes v. Barnes, 208 F.3d at 57, quoting Jett v. Dallas Independent School District, 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); Terminate Control Corp. v. Horowitz, 28 F.3d 1335,1348-49 (2d Cir. 1994). Although the official in question does not have to be a final policymaker for all purposes, but only with respect to the conduct challenged, simply exercising discretion in an area where that official is not the final policymaker under state law cannot, by itself, establish municipal liability. Praprotnik, 485 U.S. at 139-40, 108 S.Ct. 915 (Brennan, J., concurring);Pembaur, 475 U.S. at 481-82, 105 S.Ct. 1292. Moreover, if policymaker liability is premised on the fact that the official knew of and approved of the act in question (as opposed to ordering the act or executing it herself), the plaintiff must also prove that the official knew that the subordinate employees took that action for unconstitutional reasons. Praprotnik, 485 U.S. at 127, 108 S.Ct. 915 ("If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final") (emphasis added);Davis v. City of New York, 228 F. Supp.2d 327, 341-42 (S.D.N.Y. 2002) (the City cannot be held liable only on the grounds that former Commissioner knew that subordinates refused to reinstate the plaintiff without a further showing that he knew they refused to reinstate him because Davis had exercised his First Amendment rights).
The question, then, is who are the officials responsible for the retaliatory acts plaintiff allegedly suffered and what is the policymaking authority of the officials with respect to those acts.
Plaintiffs Complaint avers that "the Police Commissioner and its top policymakers participated, condoned and ratified the actions of Defendants herein," Amended Compl., ¶¶ 53, 54. To the extent that plaintiffs affidavit charges Captain Mullane with stripping plaintiff of her supervisory responsibilities and transferring her out of the Unit, Chief Fox with having knowledge of her transfer, and Captain Reiss as the official who recommended disciplinary charges against her and overseeing the investigation upon which the charges were based, Mullane, Reiss, and Fox must be the other "top policymakers" plaintiff refers to in her Complaint.
In their motion for summary judgment, defendants do not brief the scope of Mullane, Reiss, or Fox's policymaking authority in the area of disciplinary charges, employee responsibilities, and transfers. Instead, they focus exclusively on the Police Commissioner, summarily stating that neither Safir nor his successors had any knowledge of or involvement with the retaliation plaintiff allegedly suffered. See Def.'s Memo of Law at 15. Their Memo vaguely suggests that the Commissioner is the final policymaking authority relating to the personnel actions implicated by the retaliation targeted towards plaintiff, but they do not brief this issue in any greater detail. For her part, neither does plaintiff; her Reply Memorandum makes no mention of the policymaking authority of Mullane, Reiss or Fox with respect to the areas in which she suffered retaliation, nor does it explain Commissioner Safir's role in the retaliatory acts, whether by commanding the actions, approving of them, or knowing that Mullane, Reiss, and Fox carried them out with a retaliatory motive.
In rebutting the notion that New York City's liability attaches on the basis of policymaker liability, defendants state: `To hold the City liable for the acts of its employees, a plaintiff cannot just prove that the final policymaking authority, (i.e., Safir) knew of the adverse action. . . ." Def.'s Memo of Law at 15 (internal citations omitted). This is the extent of defendants' general explanation to the court of who bears final policymaking authority relating to the acts in question.
Thus, the parties ask the court to decide the question of the individual defendants9 policymaking authority in a vacuum. Section 434 of the New York City Charter vests the Police Commissioner with the cognizance and control of the government, administration, disposition and discipline of the department, and establishes the Commissioner as the chief executive chargeable with and responsible for the execution of all laws and the rules and regulations of the department. See Walton v. Safir, 122 F. Supp.2d at 477-78 (locating municipal liability in the fact that Commissioner Safir ordered plaintiffs retaliatory termination and was also the final policymaking official in the area of police officer terminations); Domenech v. City of New York, 919 F. Supp. 702 n. 1 (S.D.N.Y. 1996). While it seems likely, therefore, that the Police Commissioner bore final policymaking authority in the areas implicated by the adverse acts taken against plaintiff, and that he would have to have ordered or ratified the adverse acts in question, or at least known that Mullane, Reiss, and Fox had a retaliatory motive for carrying them out, the court needs more information about the power and authority of the police officers in question beyond the information provided by the parties before it can make a final determination as a matter of law. See Stein v. Janos, 269 F. Supp.2d 256, 261 (S.D.N.Y. 2003) (denying defendants' motion for summary judgment without prejudice because the court could not determine who had final authority to make policy concerning Stein's employment for the Village of Tarrytown based on the briefs before the court); Jannillo v. County of Orange, 187 F. Supp.2d 170, 187 (S.D.N.Y. 2002) (denying defendants' motion for summary judgment on plaintiffs municipal liability claim without prejudice where there was not enough evidence in the record for the court to determine whether the County had delegated authority to defendants to make personnel decisions for the Department), citing Cipolla v. County of Rensselaer, 129 F. Supp.2d 437, 457 (N.D.N.Y. 2001); Legal Aid Soc'y v. City of New York, 114 F. Supp.2d 204, 223 (S.D.N.Y. 2000);Rucci v. Thoubboron, 68 F. Supp.2d 311, 326 (S.D.N.Y. 1999). The court is mindful, however, that plaintiff Barry bears the ultimate burden of establishing New York City's liability based on the acts of its policymakers.
C. Defendant Campisi
In December of 1999, plaintiff filed a complaint with the Internal Affairs Bureau, alleging that the investigation into the Truancy Unit conducted by Captain Reiss and Officer Petro was unsatisfactory, that the disciplinary charges were unfair, and that she was the target of retaliation. Defendant Charles Campisi is the Chief of the Internal Affairs Unit that conducted the investigation into plaintiffs complaint. Lieutenant Ariana Donovan was assigned to investigate plaintiffs complaint. Based on the Unit's investigation, in March of 2000, the Internal Affairs Bureau held that Sergeant Petro was exonerated of the charges and the remainder of her claims were unsubstantiated. The issue before the court is whether Charles Campisi is entitled to summary judgment for lack of personal involvement.
"It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 254 (2d Cir. 2001),quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Although direct participation is not necessary, Morris v. Eversley, 282 F. Supp.2d 196, 203 (S.D.N.Y., 2003), the doctrine of respondeat superior does not suffice, Hemmings v. Gorczyk, 134 F.3d 104,108 (2d Cir. 1998). Personal involvement can be found on the grounds that: (1) the defendant supervisor participated directly in the alleged constitutional violation; (2) the supervisor, after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) the supervisor created a policy or custom under which constitutional violations occurred or allowed the continued exercise of such a policy or custom; (4) the supervisor was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the supervisor exhibited deliberate indifference to the rights of plaintiff by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d at 873.
Plaintiff seeks to establish Campisi's personal involvement on the fourth basis, stating that Campisi was "grossly negligent and deliberately indifferent to the investigation conducted at his direction . . ." Affidavit of E. Barry, at ¶ 49. She faults him for Donovan's alleged failure learn that there were problems within the Truancy Unit before plaintiff assumed a supervisory role, b) interview plaintiffs predecessors in the Unit, or c) conduct a "proper" interview of Captain Reiss." Pl.'s Rule 56.1 Statement at ¶ 38. The evidence she offers to support her claim exclusively consists of Campisi's deposition statement that he does not remember having any conversations with Lieutenant Donovan about the investigation into plaintiffs complaint. Dep. of C. Campisi, at 11.
Plaintiff also charges Campisi with failing to "learn of the quotas and that fraud existed before Plaintiff came to the Truancy Unit." Pl's Reply Memo at 21-22. Plaintiff does not offer any evidentiary support for this claim and the court could not locate one in the record.
Gross negligence, however, is defined as "a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party," or deliberate indifference to the deprivation of plaintiffs constitutional rights. Rivers v. O'Brien 83 F. Supp.2d 328, 334 (N.D.N.Y., 2000) (internal citations and quotations omitted) citing BLACKS LAW DICTIONARY (7th ed. 1999) andOwens v. Haas, 601 F.2d 1242, 1246 (2nd Cir. 1979). "Absent some indication to a supervisor that an investigation was inadequate or incompetent, supervisors are not obliged either to undertake de novo investigations or to cross examine subordinates reasonably believed to be competent as to whether their investigations were negligent." Garvin v. Goord, 212 F. Supp.2d 123, 126 (W.D.N.Y., 2002) citing Cecere v. City of New York, 967 F.2d 826, 829 (2d. Cir. 1992). Judged against these standards, the fact that Campisi may not have asked Donovan any questions about the investigation is insufficient, as a matter of law, to find that Campisi was personally involved in depriving plaintiff of her constitutional rights. Summary judgment is GRANTED as to defendant Campisi.
CONCLUSION
Defendants' motion for summary judgment on the issues of plaintiff s prima facie case of First Amendment retaliation and municipal liability is DENIED. Defendant Charles Campisi's motion for summary judgment for lack of personal involvement is GRANTED. Further, because state law renders the NYPD a nonsuable entity, plaintiffs claims against the NYPD are hereby DISMISSED with prejudice.