Mandell v. County of Suffolk, Docket No. 01-7729.

• Decision Date: 17 January 2003
• Docket Number: Docket No. 01-7729.
• Citation: 316 F.3d 368
• Parties: Howard E. MANDELL, Plaintiff-Appellant, v. The COUNTY OF SUFFOLK and John Gallagher, Police Commissioner, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

316 F.3d 368

Howard E. MANDELL, Plaintiff-Appellant, v. The COUNTY OF SUFFOLK and John Gallagher, Police Commissioner, Defendants-Appellees.

Docket No. 01-7729.

United States Court of Appeals, Second Circuit.

Argued March 7, 2002.

Decided January 17, 2003.

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Alan Polsky, Bohemia, New York, for Plaintiff-Appellant.

Diane L. Beckmann, Assistant County Attorney, Hauppauge, New York (Robert J. Cimino, Suffolk County Attorney, Hauppauge, New York, of counsel), for Defendants-Appellees.

Before: CARDAMONE, F.I. PARKER, and B.D. PARKER, Circuit Judges.

CARDAMONE, Circuit Judge.

This is an appeal in an employment discrimination case. There is a nursery rhyme that teaches "sticks and stones may break my bones, but names will never hurt me." Such is a lesson particularly doubtful in the workplace, as illustrated by this case, because alleged epithets and demeaning invective directed at a plaintiff by his or her superiors or co-workers can, if believed by a factfinder, subject an employer to legal liability for discrimination.

Plaintiff Howard E. Mandell, a practicing Jew and a now-retired employee of the Suffolk County Police Department (Suffolk County Police or the department), instituted the instant action against defendants, the County of Suffolk and John Gallagher, its police commissioner, individually and in his official capacity, in the United States District Court for the Eastern District of New York (Mishler, J.).

Adverse employment actions were taken against him, plaintiff contends, because of his religion, and also in retaliation for his June 1987 testimony before the Suffolk County Legislature's Public Safety Committee and for his 1992 interview with Newsday, the Long Island daily newspaper. Accordingly, the complaint alleges religious discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and First Amendment retaliation in violation of 42 U.S.C. § 1983. It also asserts claims under New York State's Human Rights Law, N.Y. Exec. Law § 296, and the New York State Constitution, Article 1, § 8.

BACKGROUND

I Facts

A. Plaintiff's Allegations of Pro-Catholic and Anti-Jewish Bias Within the Suffolk County Police Department

Because we are reviewing a dismissal of the complaint at the summary judgment stage, we view the facts in the light most favorable to plaintiff and resolve all factual disputes in plaintiff's favor. See Fed.R.Civ.P. 56(c). Plaintiff was employed by the Suffolk County Police for over 30 years, retiring with the rank of deputy inspector in 2001. He joined the department as a police officer in 1969 and attained the rank of captain in 1988, through a series of promotions based on civil service examinations. Mandell asserts that throughout his police career he faced a pro-Christian and, more specifically, pro-Irish-Catholic bias. Further, he contends anti-Semitism for a long time has been a part of the department culture. He has repeatedly been a target of anti-Semitic remarks and taunting, such as being called "that Jew" and "Jewboy" and being told that all Jews stick together, and was subjected to insulting and demeaning conduct by fellow officers. He relates that on one occasion, for example, another officer tossed a dime on the floor before him to see if he would stoop down to pick it up. Plaintiff claims also to have heard virulent anti-Semitic remarks directed at other Jews, such as "f* * *ing Jews" and "f* * *ing Jew lawyer." Although these overt expressions of anti-Semitism in his presence virtually ceased in 1989 upon his promotion to deputy inspector, he attributes this to his rank, not to a shift in the department attitude toward him.

Rabbi Jeffrey Wartenberg, a Suffolk County police chaplain, supported plaintiff's allegations, stating in an affidavit that during his 20 years with the department he had heard many Jewish officers complain about the disparaging remarks made against their religion. Based on his experience, Rabbi Wartenberg concluded that "anti-Semitism is a way of life within the Department" and that Jewish officers had been held back in their careers by superiors with negative feelings about them. He said his complaints to every police commissioner, including defendant Gallagher, did not result in any corrective action, and the Suffolk County Police continues to favor Catholics, while Jewish officers are only promoted in the rare cases where merit is the sole criterion.

B. Plaintiff's Career Before 1997 and His Public Criticism of the Department

In June 1987, when he was a police lieutenant, Mandell testified before the Suffolk County Legislature's Public Safety Committee. His testimony described the department as insufficiently proactive in fighting organized crime, resistant to change, and more focused on protecting its internal bureaucracy than on protecting the public. He also set out his view that the "old-boy network" within the department covered up officers' misconduct, including criminal activity, and that racism and anti-Semitism were systemic. On the following day, plaintiff's photograph and an excerpt from this testimony appeared on the front page of Newsday under the headline, "Suffolk Cop Charges: `They Look Out For Their Own.'"

Apparently members of the department were offended because in January 1988 plaintiff was expelled from the Suffolk County Patrolmen's Benevolent Association for having "branded the entire department as racist and anti-semites." Plaintiff says his expulsion was another manifestation of the general hostility toward him, triggered by his testimony, that persisted in the department for years.

Later in 1988 Mandell was promoted from lieutenant to captain. This promotion, like those before it, was not discretionary to the commissioner, but based on a civil service examination, subject to the commissioner's bypass. As part of the promotion procedure, Mandell's then-supervisor Inspector John J. Stewart wrote an evaluation that gave a generally positive assessment of plaintiff's work as a police officer, describing him as an "acceptable candidate for promotion to the rank of Captain." In the evaluation Stewart also stated that plaintiff was "a somewhat controversial individual" and complained that he (Stewart) had spent too much time on issues relating to plaintiff, the media, and internal investigations. He wrote, specifically underlining the second clause,

While I do not consider that the attitude projected [by plaintiff] should necessarily affect [plaintiff's] suitability for promotion [to captain], I do feel that his attitude should be taken into account when placing him in any future assignment.

This evaluation was placed in plaintiff's personnel file.

A year later plaintiff was promoted to the rank of deputy inspector. This promotion was distinct from Mandell's preceding promotions because all promotions beyond the rank of a captain were made at the discretion of the police commissioner, who at that time was Daniel Guido. Unlike the commissioners before and after him, Commissioner Guido was not from Suffolk County; he was an outsider and a known reformer. Mandell attributes his promotion to Commissioner Guido's effort to institute a merit-based promotion policy and maintains that after Commissioner Guido's resignation, the department reverted to its "old-boy network's" practices of nepotism and cronyism. The 1989 promotion to deputy inspector was not only plaintiff's sole discretionary promotion; it was also his last.

Several years later, in the summer of 1992, at his supervisor's request, Mandell gave an interview to Newsday for its series of articles entitled "Black `n' Blue in Wyandanch: Summer in the 1st Precinct." The series focused on the operation of the predominantly white police force in a predominantly black community of Wyandanch. The second article quoted plaintiff as saying that the Suffolk County Police had difficulty recruiting black officers because the black community viewed police officers as oppressors. The article reported, in addition, plaintiff's comment that he had to remove some officers with racist attitudes from covering Wyandanch despite his efforts to screen officers for racist attitudes before assigning them there.

After the publication of the Newsday article, Mandell's co-workers' hostility toward him escalated. For example, other police officers would not talk to him unless they had to, and two police chiefs expressly warned him that his comments in Newsday might harm his chances for advancement. Within days of publication, Chief Edwin Michel told him that if he wanted to be a chief he would have to learn to keep his mouth shut, and Chief Gerald Marcoe advised that his career might be adversely affected because he was "still carrying the baggage from having testified," referring to the 1987 Public Safety Committee testimony. In January 1993, five months after the interview, Mandell was transferred from the executive officer position he held in the First Precinct to a post of commanding officer in the Staff Services Bureau. Plaintiff viewed this transfer as punishment because his superiors knew he preferred to work in the more prestigious patrol division rather than in the desk job at Staff Services.

C. Plaintiff's Career During Gallagher's Tenure as Commissioner

In January 1997 defendant John Gallagher became police commissioner of Suffolk County. The crux of plaintiff's complaint is that Gallagher, who is Irish-Catholic, promoted a pro-Catholic mentality in the department. At official police functions Gallagher made statements like "[W]e are all good Christians," and, "[W]e can all work well together because we all went to good Christian schools, were taught by the Christian Brothers and learned good Christian values." Defendants respond that Gallagher's statements were innocuous and taken out of context.

During Gallagher's tenure as...