Cruz v. Liberatore
| Decision Date | 14 October 2008 |
| Docket Number | No. 04 Civ. 9808(SCR).,04 Civ. 9808(SCR). |
| Citation | 582 F.Supp.2d 508 |
| Parties | Victor CRUZ, Plaintiff, v. Louis LIBERATORE, individually and in his official capacity, Thomas Belfiore, individually and in his official capacity, Westchester County Police Department, and The County of Westchester, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Julie Ero Gaughran, Julie Gaughran, Esq., Mount Kisco, NY, for Plaintiff.
Rocco Conte, II, O'Connor O'Connor, Bresee, and First, PC, Albany, NY, for Defendants.
Plaintiff, Victor Cruz, filed this action against Louis Liberatore, individually and in his official capacity as Deputy Chief Inspector of the Westchester County Police Department (the "WCPD"), Thomas Belfiore, individually and in his official capacity as Commissioner of the WCDP, the WCPD, and the County of Westchester (the "County")(collectively, the "defendants"). Officer Cruz has asserted a plethora of claims against the defendants. Specifically, the complaint alleges that (1) Inspector Liberatore created a hostile work environment and violated Officer Cruz's Equal Protection and Substantive Due Process rights; (2) Commissioner Belfiore, the WCPD, and the County failed properly to train and supervise their officers with deliberate indifference to Officer Cruz's constitutional and federal rights; (3) the WCPD and the County violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq.; (4) all of the defendants violated New York State Human Rights Law ("NYHRL"), N.Y. EXEC. LAW § 290 et seq.; (5) Inspector Liberatore is liable for the tort of intentional infliction of emotional distress; (6) Inspector Liberatore is liable for the torts of assault and battery and (7) all of the defendants are liable for negligence. Following the close of discovery, the defendants filed a motion for summary judgment as to all of Officer Cruz's claims.
For the reasons set forth in this opinion, the Court grants in part and denies in part the defendants' motion for summary judgment.
Officer Cruz, who claims that he is Hispanic, served as a WCPD police officer for twenty years until his retirement in 2005. In August 2003, Inspector Liberatore stopped Officer Cruz in the hallway at the WCPD headquarters and demanded to know the Officer's national origin. Officer Cruz responded that he was Puerto Rican. Inspector Liberatore allegedly responded that Officer Cruz was "too white and too tall" to be Puerto Rican; he also allegedly observed that Officer Cruz was "the biggest Puerto Rican" that he had ever seen and remarked that he was too heavy for the Puerto Rican "climate." PL Mem. of Law in Opp'n at 2.
On August 11, 2003, Inspector Liberatore, who is superior in rank to Officer Cruz, made the Officer salute, stand at attention, and stare straight ahead for about one minute because he believed that Officer Cruz had given him an improper salute. Officer Cruz claims that he had been walking with Chris Kelly, a white detective, and that Inspector Liberatore did not make Kelly salute him. Officer Cruz contends that the WCPD written policy directives do not require junior officers to salute senior officers in the hallway or when the senior officer is out of uniform, as he contends Inspector Liberatore was on August 11. The defendants contend that Inspector Liberatore merely instructed Officer Cruz on how to execute a proper salute and that Kelly was not required to salute the Inspector because Kelly was not in uniform.
Several months later, on December 11, 2003, Officer Cruz used a Sheriffs car, with permission, to deliver documents to another building. Once he returned to WCPD headquarters, he claims that Inspector Liberatore "accosted him" and demanded to know why Officer Cruz had used a police car and why he had not turned on the car's headlights while the car's wipers were on, a violation of New York State law. Officer Cruz claims that, as Inspector Liberatore was speaking to him, the Inspector threateningly tapped five times on Officer Cruz's chest with a closed fist. Officer Cruz asserts that he apologized to the explained that he had turned on the headlights shortly after leaving headquarters. At this point, Officer Cruz alleges, Inspector Liberatore slapped him hard across his face.
Thereafter, Officer Cruz went to the office of Sergeant Leonard Spano, who was the president of the Police Benevolent Association, and informed him of what had transpired. While Officer Cruz was in Spano's office, Inspector Liberatore entered the office for an unrelated reason. Spano told the Inspector that Officer Cruz had complained to him and was offended by the Inspector's actions. Officer Cruz claims that Inspector Liberatore stated, PL Rule 56.1 Statement ¶ 27.
Subsequently, Officer Cruz claims that he went to Special Affairs to file charges against Inspector Liberatore of discourteous behavior and conduct unbecoming an officer. During this time, Officer Cruz also reported Inspector Liberatore's conduct during the "saluting incident." Officer Cruz did not claim that he had been discriminated against or that he faced a hostile work environment; in a subsequent deposition taken in connection with this case, Officer Cruz claims that he was afraid that the WCPD would retaliate against him if he made such allegations. The parties agree that Inspector Liberatore, in forty years of services, has never been accused of any sort of discriminatory conduct. After an investigation, the Special Investigations Unit ("SIU") substantiated the charge of discourteous conduct, but dismissed the charge of conduct unbecoming an officer. A letter of counseling was placed in Inspector Liberatore's file.1
During the SIU investigation, Officer Cruz indicated that he was still very upset about what had happened and indicated that he was concerned about how he would react if he came across Inspector Liberatore at WCPD headquarters. The WCPD removed Officer Cruz's weapons, although they were shortly returned to him. In addition, Officer Cruz consented to being transferred from headquarters to the Yonkers Social Services office (the "Yonkers Office"), where he had worked earlier in his career. The Officer's rank and pay did not change, and Officer Cruz indicated that he enjoyed working at the Yonkers Office.
The parties do not dispute that, in June or July 2004, while Officer Cruz was working in the Yonkers Office, a former girlfriend of his, who also worked there, complained about Officer Cruz's behavior. Specifically, the complainant stated that Officer Cruz had been bothering other women at the office by focusing the security camera on female employees and using his office to meet and pick up women. After this complaint, the SIU conducted an investigation but concluded that there was no reason to interview Officer Cruz. Captain John Hodges, Officer Cruz's superior, received a letter from an employee on Officer Cruz's behalf requesting that he be allowed to stay at the Yonker's Office.
After the investigation, Officer Cruz was transferred from the Yonkers Office to the Westchester County Airport (the "Airport"). Officer Cruz claims that, after he received notice of the transfer, Hodges told him: Aff. Conte, Exh. G at 157. The defendants, however, contend that Hodges himself transferred Officer Cruz, and they submit an affidavit in which Hodges avers: Id., Exh. Q at 2.
Officer Cruz claims that he was unhappy with his transfer from the Yonkers Office to the Airport because the transfer forced him to work around the clock and on weekends, and thus did not allow him to visit his son on the weekends. The defendants note that Officer Cruz's transfer to the Airport did not affect his rank, pay, or benefits.
Officer Cruz filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on June 15, 2004. In that complaint, Officer Cruz asserted that he had been discriminated against on the basis of his race, color, and national origin. The basis for these allegations was Inspector Liberatore's alleged statements that Officer Cruz was "too white and too tall" to be Puerto Rican, the "biggest Puerto Rican" he had ever seen, and was too heavy for his climate. Id., Exh. C at 2.
On September 20, 2004, the EEOC issued a right to sue letter, and Officer Cruz filed a Inspector Liberatore created a hostile work environment and violated Officer Cruz's Equal Protection and Substantive Due Process rights; (2) Commissioner Belfiore, the WCPD, and the County failed properly to train and supervise their officers with deliberate indifference to Officer Cruz's constitutional and federal rights; (3) the WCPD and the County violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq.; (4) all of the defendants violated the NYHRL, N.Y. EXEC. LAW § 290 et seq.; (5) Inspector Liberatore is liable for the tort of intentional infliction of emotional distress; (6) Inspector Liberatore is liable for the tort of assault and battery; and (7) all of the defendants are liable for negligence. Following the close of discovery, the defendants filed a motion for summary judgment as to all of Officer Cruz's claims.
The defendants have filed a motion for summary judgment, and the motion is fully briefed and ready for a decision.
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