Garcia v. The City of New York
| Docket Number | Index No. 151552/2022,Motion Seq. 001 |
| Decision Date | 28 August 2023 |
| Citation | 2023 NY Slip Op 32966 (U) |
| Parties | DAVID GARCIA, Plaintiff, v. THE CITY OF NEW YORK, NETEIS GILBERT, Individually, and JOSEPH REZNICK, Individually Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION AND ORDER ON
Plaintiff David Garcia, a police officer in the New York City Police Department ("NYPD") alleges that he was denied employment benefits on the basis of his race, arrest and criminal record. Plaintiff seeks compensatory and punitive damages, withheld employment benefits, a retroactive promotion to Sergeant, and an order banning the unlawful use of sealed criminal records by the NYPD against members of the department.
Defendants moved to dismiss the complaint pursuant to Civil Practice law and Rules ("CPLR")3211. Plaintiff opposed the motion, cross-moved to amend his complaint, and submitted a Proposed Amended Complaint. Defendants then submitted papers seeking to apply their motion to dismiss to the Proposed Amended Complaint, which the court will consider in evaluating this motion (see Sage Realty Corp. v Proskauer Rose LLP, 251 A.D.2d 35, 38 [1st Dept 1998]).
Pursuant to CPLR 3025, leave to amend a pleading is freely granted absent prejudice or surprise resulting directly from any delay in asserting the proffered claim (see Peach Parking Corp. v 346 W. 40th St., LLC, 42 A.D.3d 82 [1st Dept 2007]). In this case, neither prejudice nor surprise, is demonstrated.
In the Proposed Amended Complaint, plaintiff alleges as follows Plaintiff joined the NYPD in 2004. In March 2016, he was arrested for "domestic violence allegations stemming from" his wife (NYSCEF 15, Proposed Amended Complaint, ¶ 110). Plaintiff was charged with "violation of Department Regulations." Specifically, plaintiff was charged with having "engaged in conduct prejudicial to the good order, efficiency or discipline of the Department, to wit: [he] was involved in a physical altercation with his wife" (NYSCEF 7). Plaintiff alleges that he and his wife were in the process of divorcing. The disposition sheet shows that he pled guilty to the specified charges (NYSCEF 8). Plaintiff alleges that he pled guilty to disorderly conduct (NYSCEF 15, ¶ 113). Plaintiff was suspended from duty for 30 days. Upon his return to duty, plaintiff was placed on performance monitoring. Plaintiff alleges that all documents stemming from his arrest and plea were sealed pursuant to Criminal Procedure Law ("CPL") 160.50 or 160.55.
The Proposed Amended Complaint alleges that police officers undergo an annual performance evaluation. The top score in a performance evaluation is five. An officer who receives a score of four or five can transfer into a specialized unit, where they can earn as much as $50,000 more than an officer who works regular patrol. Some specialized units place officers on an investigatory track wherein they will receive promotion to detective within 18 months of placement in the unit. During the span of a 20-year career, such a promotion can mean millions more in pay and benefits.
The NYPD Patrol Guide states that police officers must keep a daily tabulation of their enforcement activity. The activity is recorded on Monthly Conditions ImProposed Amended Complaintt Reports forms ("monthly reports"). The monthly reports are assigned points based on the enforcement activity recorded therein. The number of annual points assigned to the reports should conform to the annual evaluation score.
Police officers are judged on the number of arrests and summons they issue as compared to their peers on the same command. Assignments are to be given on a rotating basis to ensure that every officer within a command is assigned a proportionate number of assignments to earn activity. If for some reason an officer is given a disproportionate number of assignments which prevent him/her from achieving activity points, those assignments should be factored into their annual evaluation.
Although plaintiff was the third most senior officer on his command, he was assigned a disproportionate number of tours which prevented him from earning activity points on par with his white peers. Plaintiff was lucky to have 10 tours of patrol every month. His white counterparts, against whom he is judged regularly, have 20 tours for that same month. Plaintiff did not have a steady sector or a steady partner which made it more difficult to earn activity points. White colleagues would have a steady sector that they were responsible for which allowed them to get the numbers required for strong performance evaluations.
The tours assigned to plaintiff created a hostile work environment based on his race. Plaintiff was "disproportionately assigned fixed posts, prisoner transports, station house security, telephone switchboard, sent to barriers, and other assignments at a far greater rate than his white colleagues yet was judged against his peers as if he worked patrol every day." To date white officers Napolitano and McNamara are almost never assigned to duties that make it difficult to earn activity points.
In February or March 2017, plaintiff took the sergeant's examination and passed. He continued to be on performance monitoring. In September 2019, plaintiff went before the Career Advancement Review Board ("CARB") and was denied promotion. Chief Morris, one of the chiefs who conducted the hearing, "accused plaintiff of being lazy which is coded language for race discrimination." Defendant Reznick told plaintiff that he would not be promoted because he had committed a crime against his wife. Even though the records in the criminal proceeding were sealed, defendants used his arrest to deny him promotion.
Following the CARB hearing, plaintiff applied for and was denied multiple specialized details. Plaintiff "spoke with" defendant Gilbert about joining the anti-crime unit to increase his arrests but his application was denied. The position was filled by less qualified and less senior white officer Hespler. Plaintiff was similarly situated to Hespler in every way except for race.
The individual defendants assign a disproportionate amount of overtime to white police officers as compared to minority officers. White officers receive the vast majority of overtime, and "top out" on overtime every month which results in approximately 40 hours per month in overtime. Plaintiff, who is similarly situated and performs at or above their level, is lucky to earn 10 hours a month in overtime. The lower amount of overtime results in plaintiff earning $5,000 to $7,000 less a month than his white peers. Plaintiff explained his situation to his Commanding Officer who refused to place plaintiff in a position to earn as much activity as non-Hispanic officers within the command.
Plaintiff next applied for the Domestic Violence position within the command. He was not given the opportunity to interview for the position, which was given to white officer Boystak. Plaintiff was similarly situated to Boystak as to her tour and duties. Plaintiff applied for the Neighborhood Coordinator Position and was not given an interview. Plaintiff again received a negative evaluation. White comparators Lynch and McDermott received higher evaluation scores as a result of their race. As a result of plaintiff's negative evaluations, he was prevented from achieving upward mobility within the NYPD.
In May 2020, Lt. Pimental informed plaintiff that defendant Gilbert did not recommend him for promotion due to his lack of activity. No consideration was given to the fact that the lack of activity was due to plaintiff being assigned tasks with little chance to earn activity points. Favorable treatment was given to white police officers William Lynch and Thomas McDermott. They were both on the Sergeants' List and were given easier assignments within the command and they were promoted.
Plaintiff again went in front of CARB on September 15, 2020. At the hearing he was chastised over his activity, was informed that he would not be promoted, and was taken off the Sergeant's List. White officers who were similarly situated would get three appearances before, CARB before being taken off said list.
In October 2020, defendant Gilbert extended plaintiff's Level 2 performance monitoring. In February 2021, plaintiff filed a complaint of discrimination against Gilbert with the Office of Equal Employment Opportunity. On February 26, 2021 plaintiff's direct sergeant placed him on an overtime list. Lt. DiPetta told plaintiff's sergeant that plaintiff could not be placed on the overtime list. As a result of complaining about discrimination, plaintiff went from earning approximately $1,000 a month in overtime to no overtime. His white comparators reached the maximum allowed for overtime per month.
On March 10, 2021, plaintiff volunteered for overtime. The overtime tasks were given to other employees because of his complaint of discrimination. The next day he was denied a day off. He was denied repeated days off, whereas white officers were always allowed days off. Plaintiff was further chastised for not earning activity points and received more assignments that prevented him from earning activity points. His evaluations worsened after his complaint. As a result, he has lost pension benefits and substantial income.
In nine causes of action, the Proposed Amended Complaint alleges violations of New York State Human Rights Law (NY'SHRL) and the New York City Human Rights Law ("NYCHRL") through employment discrimination based on race and arrest/conviction record, hostile work environment, and retaliation.
On a motion, pursuant to CPLR 3211 (a) (7), the facts pleaded are presumed to be true and are accorded every favorable inference....
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