Patrolmen's Benev. Ass'n v. City of New York

• Decision Date: 17 September 1999
• Docket Number: No. 97 Civ. 7895(SAS).,97 Civ. 7895(SAS).
• Citation: 74 F.Supp.2d 321
• Parties: PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INCORPORATED, for itself and on behalf of its members, Police Officers Gary Johnson, Missie Lewis-Manning, Robert Drayton, Marva Gardner, Demetria Singleton, Margo McKenzie, Robert Winslow, Kenneth Zephrin, Oscar Espinal, Dave Guevara, Peggy Alves, Robin Irvin, Silas Plunkett, Ronny Forbes, Alton Walker, Barry Hinds, Tselanee Kitching, Laverne Stuger, Michael Butler, Carole P. Sievwright, Inger Barron, and Ronald S. Archer, Plaintiffs, v. The CITY OF NEW YORK, Rudolph Giuliani, as Mayor of the City of New York and individually, Howard Safir as Police Commissioner of the City of New York and individually, New York City Deputy Police Chief Patrick Brennan, officially and individually, Deputy Police Chief Corneilius J. Dever, officially and individually, Chief Michael A. Markman, officially and Individually, Patrick J. Kelleher, First Deputy Commissioner, officially and individually, Sgt. Deborah Peters, of the Patrol Borough Chief's Office, individually and in her official capacity, Patrol Chief Wilbur Chapman, individually and in his official capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

74 F.Supp.2d 321

PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INCORPORATED, for itself and on behalf of its members, Police Officers Gary Johnson, Missie Lewis-Manning, Robert Drayton, Marva Gardner, Demetria Singleton, Margo McKenzie, Robert Winslow, Kenneth Zephrin, Oscar Espinal, Dave Guevara, Peggy Alves, Robin Irvin, Silas Plunkett, Ronny Forbes, Alton Walker, Barry Hinds, Tselanee Kitching, Laverne Stuger, Michael Butler, Carole P. Sievwright, Inger Barron, and Ronald S. Archer, Plaintiffs, v. The CITY OF NEW YORK, Rudolph Giuliani, as Mayor of the City of New York and individually, Howard Safir as Police Commissioner of the City of New York and individually, New York City Deputy Police Chief Patrick Brennan, officially and individually, Deputy Police Chief Corneilius J. Dever, officially and individually, Chief Michael A. Markman, officially and Individually, Patrick J. Kelleher, First

Deputy Commissioner, officially and individually, Sgt. Deborah Peters, of the Patrol Borough Chief's Office, individually and in her official capacity, Patrol Chief Wilbur Chapman, individually and in his official capacity, Defendants.

No. 97 Civ. 7895(SAS).

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

September 17, 1999.

Joan M. Cresap, Trager, Cronin & Byczek, L.L.P., Lake Success, NY, for Plaintiffs.

Donald Sullivan, Assistant Corporation Counsel, New York City, for Defendants.

OPINION AND ORDER

SCHEINDLIN, District Judge.

                TABLE OF CONTENTS
                  I. Introduction ............................................................................. 324
                 II. Background ............................................................................... 325
                III. Legal Standard for Summary Judgment ...................................................... 326
                 IV. Discussion ............................................................................... 326
                     A. Plaintiffs' Equal Protection Claim .................................................... 326
                        1. "Operational Needs" May Constitute a Compelling State Interest ..................... 327
                

                        2. Whether Action Was "Narrowly Tailored" Remains Disputed Question of Fact
                           Precluding Summary Judgment ........................................................ 330
                           a. Flexibility and Duration ........................................................ 330
                           b. Efficacy of Alternative Remedies ................................................ 331
                     B. Plaintiffs' Title VII Claim ........................................................... 332
                        1. Legal Analysis Applicable to Cases Involving Direct Evidence of Discrimination ..... 332
                        2. Issue of Whether Transfer Was An Adverse Employment Action Precludes Summary
                           Judgment ........................................................................... 333
                           a. What Constitutes an "Adverse Employment Action" ................................. 333
                           b. Facts at Issue .................................................................. 335
                        3. Defenses Available Under Title VII ................................................. 337
                           a. Bona Fide Occupational Qualification Exception .................................. 337
                           b. Valid Affirmative Action Plan ................................................... 338
                  V. Conclusion ............................................................................... 339
                

I. Introduction

The Patrolmen's Benevolent Association of the City of New York ("PBA"), brings this employment discrimination action against defendants, the City of New York and the New York City Police Department ("NYPD"), on behalf of itself and twenty-two black and black-Hispanic police officers who were involuntarily transferred to the 70th Police Precinct in August 1997, following the torture and beating of Abner Louima.¹ Plaintiffs allege that defendants' consideration of their race, color and national origin in deciding to transfer them from one precinct to another violated the equal protection clause of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., as amended, 42 U.S.C. §§ 1981, 1983 and 1985 and the New York State Human Rights Law. Plaintiffs seek monetary damages and injunctive relief. Defendants do not dispute that race was the basis for the transfer decision. Rather, defendants argue that their actions were justified by exigent circumstances in the community patrolled by the 70th Precinct.²

Defendants now move for partial summary judgment on plaintiffs' equal protection claim, asserting that "operational needs" is a legally cognizable defense to claims of improper race-based transfers of police officers. Defendants also move to dismiss plaintiffs' Title VII claim, alleging that plaintiffs have failed to allege an adverse employment action. Plaintiffs have cross-moved for summary judgment on their equal protection claim, contending that defendants' transfer decision was not narrowly tailored to meet a compelling state interest. In addition, plaintiffs have moved for partial summary judgment on their Title VII claim to exclude certain defenses to that claim.

The facts of this case are unique. Never before has the New York City Police Department resorted to race-based transfers of police officers in response to a crisis. At the outset, it is also important to note that:

[a] discussion of the police function is essentially a description of one of the basic functions of government, especially in a complex modern society where police presence is pervasive. The police function fulfills a most fundamental obligation of government to its constituency.

Foley v. Connelie, 435 U.S. 291, 297, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978) (New York statute requiring U.S. citizenship for members of state police force did not violate the equal protection clause under rational relationship test). Moreover, the legal issues involved are singular. The legality of a municipal program to improve law enforcement efforts by adopting a race-conscious hiring or promotion program is typically challenged by white applicants alleging "reverse discrimination" in violation of the equal protection clause or Title VII. See, e.g., Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992) (white male denied acceptance in police recruit class challenged affirmative action plan that resulted in hiring of minority and female applicants with lower examination scores); Peightal v. Metropolitan Dade County, 940 F.2d 1394 (11th Cir.1991) (white male denied position as firefighter challenged affirmative action plan that resulted in hiring of 57 minority or female applicants with lower examination scores); Fountain v. City of Waycross, 701 F.Supp. 1570 (S.D.Ga.1988) (white officer ranked first on promotion list challenged affirmative action plan that was used to promote black officer ranked seventh). Here, however, minority plaintiffs allege that they were victimized by the NYPD's race-based transfer program, intended to improve police/community relations in minority neighborhoods.

II. Background

On August 9, 1997, Abner Louima, a black man of Haitian national origin, suffered a brutal beating and sexual torture at the hands of several white police officers within the confines of the 70th Precinct station house in Brooklyn, New York. A meeting at New York City Police Headquarters was convened two days later in response to the incident. In attendance were Mayor Rudolph W. Giuliani, Police Commissioner Howard Safir, other police officials, members of the clergy and community leaders, including New York City Council Member Una S.T. Clarke. See Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts ("Defs.' 56.1") ¶ 3. Councilwoman Clarke is the elected City Councilwoman from New York City's 40th District, Brooklyn. Her jurisdiction includes Precincts 67, 70 and 71. Following that meeting, Commissioner Safir decided to deploy more black police officers to the 70th Precinct. See Deposition of Commissioner Safir, February 5, 1999 ("Safir Dep."), Ex. A, at 54.

On August 12, reports of the Louima incident began to appear in the media. The next day, the first of several demonstrations, involving thousands of protestors, was held at the 70th Precinct. Defs.' 56.1 ¶ 9. Police and city officials became concerned that these demonstrations might result in violence. Defs.' 56.1 ¶¶ 10, 11. As a result, on August 14, five days after the Louima incident, Mayor Giuliani and Commissioner Safir publicly announced that the Commanding Officer and Executive Officers of the 70th Precinct, both of whom were white, as well as ten police officers assigned to that precinct, would be immediately reassigned. Defs.' 56.1 ¶ 12. In their place, Raymond Diaz, who is Hispanic, was quickly appointed Commanding Officer, and George Clouden, who is black, was named Captain. Defs.' 56.1 ¶ 12.

On August 16, seven days after the Louima incident, approximately ten or twelve police officers, of whom approximately half were black, were transferred into the 70th Precinct. Defs. 56.1 ¶ 14. On August 19, eight days after making the decision to transfer black officers into the precinct, Commissioner Safir announced that minority police officers would be transferred into the 70th Precinct, and that the City would recall the Haitian-American police officers who had been on a leave of absence to Haiti to help reform the notoriously brutal Haitian police force. Defs.' 56.1 ¶ 16.³ Also on the 19th, the Mayor created a Task Force on New York City Police/Community Relations. Defs.' 56.1 ¶ 17.

On August 25, two weeks after Commissioner Safir's decision to deploy black officers, approximately twenty-seven police officers within the Command known as Patrol Borough Brooklyn South — including all of the plaintiffs — were involuntarily transferred to the 70th Precinct. All twenty-two plaintiffs transferred on August 25 are black and identify themselves...