Buchanan v. City of N.Y.

• Citation: 556 F.Supp.3d 346
• Decision Date: 23 August 2021
• Docket Number: 21-Cv-660 (SHS)
• Parties: Dane BUCHANAN, James Christopher Duerr, Nicole Napolitano, and Winsome Thelwell, Plaintiffs, v. The CITY OF NEW YORK, the New York City Civilian Complaint Review Board, and Jonathan Darche, in his Official and Individual Capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

556 F.Supp.3d 346

Dane BUCHANAN, James Christopher Duerr, Nicole Napolitano, and Winsome Thelwell, Plaintiffs,

v.The CITY OF NEW YORK, the New York City Civilian Complaint Review Board, and Jonathan Darche, in his Official and Individual Capacity, Defendants.

21-Cv-660 (SHS)

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

Signed August 23, 2021

Elizabeth Rachel Sprotzer, Hope Allison Pordy, Spivak Lipton LLP, New York, NY, for Plaintiffs.

Andrea Mary O'Connor, Yuval Rubinstein, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendant Jonathan Darche.

OPINION & ORDER

SIDNEY H. STEIN, United States District Judge.

This case involves four former employees of the New York City Civilian Complaint Review Board ("CCRB") who claim that they faced professional retaliation for engaging in constitutionally protected speech. Plaintiffs Dane Buchanan, James Christopher Duerr, Nicole Napolitano, and Winsome Thelwell bring this action pursuant to 42 U.S.C. § 1983, alleging official conduct in violation of the First Amendment. Plaintiffs also bring comparable claims under Article I, Section 8 of the New York State Constitution, as well as retaliation claims under the New York State Human Rights Law ("NYSHRL") and New York City Human Rights Law ("NYCHRL"). Plaintiffs sue the City of New York, the CCRB, and CCRB Executive Director Jonathan Darche, who plaintiffs allege spearheaded a "campaign of retaliation and harassment" culminating in their November 2020 termination. (Compl. ¶ 5, ECF No. 7.)

Defendants have now moved to dismiss the complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, defendants’ motion is granted in part and denied in part.¹

I. BACKGROUND

The CCRB, an independent agency of the New York City government, is tasked with the oversight and investigation of alleged New York City Police Department ("NYPD") officer misconduct. The CCRB and its staff "receive, hear, make findings, and recommend action on complaints" against NYPD officers. (Compl. ¶ 17.) The Board itself consists of 15 political appointees,² and the agency employs roughly 200 investigators and staff. (Id. ¶¶ 18-19.) In addition to investigating police misconduct, the CCRB holds monthly open meetings and releases periodic reports on its activities and recommendations. (Id. ¶¶ 20-21).

At the time of their terminations, plaintiffs Thelwell and Duerr served as the CCRB's Co-Chiefs of Investigations. Plaintiff Buchanan served as Deputy Chief of Investigations, and plaintiff Napolitano served as Director of Policy and Advocacy. (Id. ¶¶ 9-12.) Defendant Darche has been the agency's Executive Director since 2017. (Id. ¶ 15.)

This case centers on an increasingly bitter feud between plaintiffs and Darche over the CCRB's direction and performance. (Id. ¶ 5.) In plaintiffs’ view, the CCRB had failed to fulfill its mandate to be "independent," acting instead with undue deference to the NYPD and the mayor's office. Darche, in particular, allegedly "skewed CCRB policies with a view toward currying favor with the NYPD and/or the Mayor's Office, for his own personal and professional gain." (Id. ¶ 27.) On several occasions, plaintiffs claim they voiced their disagreements with CCRB policies and practices, only to face harassment, retaliation, and ultimately termination. Plaintiffs focus on five instances of alleged protected speech, beginning in 2019 and continuing until their November 2020 firing, in which they raised their concerns to Darche and others within the CCRB.

First, in July 2019, Buchanan co-authored a memorandum with Olas Carayannis, CCRB Deputy Chief of Special Operations,³ after consulting with Duerr and Thelwell. The document criticized a proposed agency policy that would have limited the ability of CCRB investigators to obtain footage from the cameras NYPD officers wear while on duty. (Id. ¶ 32a.) After receiving the memorandum, Darche called Buchanan, "enraged by the criticisms, and shouted: ‘Who do I need to fire, Olas and you, or Olas, you, Chris [Duerr] and Winsome [Thelwell]?’ " (Id. ¶ 32b.)

Plaintiffs continued to oppose the perceived lack of access to the footage, known as body-worn camera, or BWC, footage. In June 2020—as widespread protests following the death of George Floyd renewed public focus on police misconduct and accountability—Buchanan and Carayannis, again with input from Duerr and Thelwell, prepared "an unsolicited memo to all senior staff" addressing the issue. (Id. ¶ 32c.) The memorandum highlighted a "tremendous backlog in BWC requests," and "urge[d] the Agency to seize this moment to do everything in its power to obtain unmediated direct access to BWC footage." (Id. )

This document soon found its way into the press. Darche held Buchanan and Carayannis responsible for the leak, and "repeatedly threatened that their roles within the CCRB would suffer as a result." (Id. ¶ 32d.) Darche then instructed Duerr and Thelwell to "restructure Buchanan's and Carayannis's jobs so as to functionally demote them," but they refused to do so. (Id. ¶ 32e.)

Around the same time, Thelwell sent Darche an email criticizing the lack of access to the BWC tapes and a resulting backlog of cases. The email charged that the CCRB had failed to "equally and ethically serve the citizens of this City," and described the backlog as "outrageous and offensive." Thelwell further protested that "so far, all I have received for speaking out is anger and retaliation," citing her recent exclusion from docket review meetings she had previously attended. (Id. ¶ 33a.)

Soon thereafter, Buchanan, Duerr, Thelwell, and Carayannis, with input from Napolitano, circulated another unsolicited memorandum "condemning an agreement" with the NYPD officers’ union that allowed officers to turn off their video feeds during remote interviews with CCRB investigators. (Id. ¶ 35a.) Plaintiffs wrote that the agreement prevented investigators from assessing nonverbal clues, undermining their ability to conduct "complete, thorough and impartial" investigations. The memorandum concluded: "We cannot take a step backward when the city demands we march forward." (Id. )

At 9 p.m. the same day, Darche and CCRB General Counsel Matthew Kadushin contacted Duerr to express anger at the memorandum. Darche stated his belief that plaintiffs were attempting to have him removed as Executive Director, that he "always comes out on top," and that he was "done making concessions" to Thelwell. Kadushin stated that they "had a plan on how to deal with her." (Id. ¶ 35b.)

Finally, in July, Napolitano prepared a memorandum addressed to Darche and CCRB Board Chair Fred Davie on instances in which panels of the Board overturned the recommendations of investigative staff, known as "flips." Napolitano argued that the politics of the particular Board members on each panel, rather than the merits of the complaint, determined which recommendations were flipped. (Id. ¶ 34a.) Buchanan, Duerr, and Thelwell had also raised repeated concerns about the frequency of flips. (Id. ¶ 35b.) After Napolitano submitted her memorandum, Kadushin contacted her to tell her that the document was a "problem" and admonished her that "[n]obody told you to write that memo .... [T]hat's not what you were asked to do."⁴ (Id. )

In addition to these incidents, plaintiffs claim that Darche created a "hostile work environment ... in which [employees] were constantly subjected to intimidation, ridicule, insults, and threats." (Id. ¶ 37.) Plaintiffs allege that they opposed those practices and that they faced retaliation as a result. They describe four incidents of alleged misconduct.

First, in 2019, Darche "verbally attacked and threatened" Duerr and Thelwell when they "expressed a difference of opinion" at a staff meeting on a CCRB policy relating to 911 incidents. (Id. ¶ 41.) Darche responded by "telling them they were both fired, effective immediately." When Thelwell, a black woman, did not leave the room, Darche told her that "not only was she fired but that he would call 911 on her." (Id. ) He did not similarly threaten Duerr, a white male, Darche subsequently rescinded their terminations. (Id. ) Next, in early 2020, Darche told Thelwell—who is Jamaican—that he had met someone from a Jamaican police oversight agency and that she should consider getting a job there. (Id. ¶ 42.)

Third, during the COVID-19 pandemic, the CCRB continued to have three Black clerical employees work in the office, although when "White Investigators asked to return to the office, Darche said it was not safe." (Id. ¶ 40.) When Thelwell raised the inconsistency, "noting the disparate impact COVID has on communities of color, Darche and Kadushin told her it was none of her business." (Id. )

Finally, plaintiffs argue that they faced retaliation for "openly support[ing] a complaint" by Carayannis, who alleged discrimination based on Carayannis's transgender/gender-nonconforming status. (Id. ¶ 39.) In August 2020, Carayannis filed an internal complaint claiming that Darche "questioned Carayannis's professionalism and participation at certain events because of Carayannis's appearance." (Id. ) Plaintiffs then attempted to attend a meeting convened to address the complaint, but they were refused entrance by the General Counsel, Kadushin. Carayannis subsequently filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), naming plaintiffs as potential witnesses. (Id. )

On November 12, 2020, all four plaintiffs were informed that they would be terminated effective two weeks later. The CCRB then moved their termination date to December 27. (Id. ¶ 43.) Almost immediately after learning of their firing, plaintiffs were "disconnected from access to the Agency server," including email, and had "no opportunity to effectively transition" their ongoing work product. (Id. ¶ 45.) Plaintiffs allege that their replacements have "significantly less experience with CCRB operations," and "barely any experience in a managerial...