Raymond v. City of N.Y.

• Decision Date: 27 June 2018
• Docket Number: No. 15–CV–06885–LTS,15–CV–06885–LTS
• Citation: 317 F.Supp.3d 746
• Parties: Edreweene RAYMOND, Adhyl Polanco, Pedro Serrano, Sandy Gonzalez, Ritchie Baez, Julio Diaz, Felicia Whitely, Roman Goris, Derick Waller, Kareem Abdullah, Olayokun Olagoke, and Widmarc Pierre, individually and on behalf of a class of all others similarly situated, Plaintiffs, v. The CITY OF NEW YORK, Mayor of the City of New York Bill De Blasio, in his individual and official capacity, Former Police Commissioner William J. Bratton, in his individual capacity, Police Commissioner James P. O'Neill, in his individual and official capacity, NYPD Chief of Department Carlos Gomez, in his individual and official capacity, and Bureau Chief NYPD Commanding Officer of Patrol Services Terence Monahan, in his official capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

317 F.Supp.3d 746

Edreweene RAYMOND, Adhyl Polanco, Pedro Serrano, Sandy Gonzalez, Ritchie Baez, Julio Diaz, Felicia Whitely, Roman Goris, Derick Waller, Kareem Abdullah, Olayokun Olagoke, and Widmarc Pierre, individually and on behalf of a class of all others similarly situated, Plaintiffs,

v.The CITY OF NEW YORK, Mayor of the City of New York Bill De Blasio, in his individual and official capacity, Former Police Commissioner William J. Bratton, in his individual capacity, Police Commissioner James P. O'Neill, in his individual and official capacity, NYPD Chief of Department Carlos Gomez, in his individual and official capacity, and Bureau Chief NYPD Commanding Officer of Patrol Services Terence Monahan, in his official capacity,¹ Defendants.

No. 15–CV–06885–LTS

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

Signed June 27, 2018

NWOKORO & ASSOCIATES, P.C., By: Chukwuemeka Nwokoro, Esq., 30 Broad Street, Suite 1424, New York, NY 10004, Attorneys for Plaintiffs

ZACHARY W. CARTER, CORPORATION COUNSEL OF THE CITY OF NEW YORK, By: Kathleen Marie Comfrey, Esq., Yuval Rubinstein, Esq., 100 Church Street, New York, NY 10007, Attorneys for Defendants

OPINION AND ORDER

LAURA TAYLOR SWAIN, United States District JudgePlaintiffs Edreweene Raymond ("Raymond"), Adhyl Polanco ("Polanco"), Pedro Serrano ("Serrano"), Sandy Gonzalez ("Gonzalez"), Ritchie Baez ("Baez"), Julio Diaz ("Diaz"), Felicia Whitely ("Whitely"), Roman Goris ("Goris"), Derick Waller ("Waller"), Kareem Abdullah ("Abdullah"), Olayokun Olagoke ("Olagoke"), and Widmarc Pierre ("Pierre") (collectively, "Plaintiffs") brought this civil rights action, individually and on behalf of a putative class of all others similarly situated, pursuant to New York Labor Law § 215–a ; 42 U.S.C. §§ 1981, 1983, 1985, and 1986 ; the New York State Human Rights Law ("NYSHRL"), New York Executive Law §§ 290, 296 ; the New York City Human Rights Law ("NYCHRL"), New York City Local Law 59 of 1986 as amended by Local Rule 39 of 1991, § 8–207; and New York State Constitution Article 1, § 8, against Defendants the City of New York ("the City"), Mayor of the City of New York Bill de Blasio ("Mayor de Blasio"), Former Police Commissioner William J. Bratton ("Former Commissioner Bratton"), Police Commissioner James P. O'Neill ("Commissioner O'Neill"), NYPD Chief of Department Carlos M. Gomez ("Chief Gomez"), and Bureau Chief NYPD Commanding Officer of Patrol Services Terence Monahan ("Chief Monahan"), (Mayor de Blasio, Former Commissioner Bratton, Commissioner O'Neill, Chief Gomez, and Chief Monahan are, together, referred to herein as the "Individual Defendants") (collectively, "Defendants"). The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.

In a 17–count Amended Complaint, Plaintiffs claimed that the NYPD maintains illegal arrest and citation quotas that are focused disproportionately on areas in which minorities reside, that minority officers are pressured to meet the quotas, and that minority officers suffer adverse and retaliatory employment actions when they refuse to enforce or complain about the quotas as discriminatory. (Docket Entry No. 31.) On March 6, 2017, this Court issued a Memorandum Opinion and Order granting Defendants' motion to dismiss the Amended Complaint (the "Motion to Dismiss Opinion"), and permitting Plaintiffs to move for leave to file a Second Amended Complaint as to the claims and requests for relief asserted in the Amended Complaint's Second, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, and Seventeenth Causes of Action. (Docket Entry No. 60.) Those claims were for preliminary and permanent injunctive relief, and alleged violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981, New York State and New York City Human Rights Laws, and of the First Amendment to the United States Constitution and 42 U.S.C. § 1983 based on alleged retaliation.² (Id. )

On April 7, 2017, Plaintiffs moved for leave to file a Second Amended Complaint, appending their proposed Second Amended Complaint ("Proposed SAC") to their motion papers. (Docket Entry No. 64, Docket Entry No. 66–1.) In the Proposed SAC, Plaintiffs seek to assert claims against the City, Mayor de Blasio, Former Commissioner Bratton, Commissioner O'Neill, Inspector and Former Commanding Officer of the 40th Precinct Christopher McCormack ("Inspector McCormack"), Deputy Inspector and former Commanding Officer of Transit District 32 Constantin Tsachas ("Deputy Inspector Tsachas"), First Deputy Commissioner Benjamin Tucker ("First Deputy Commissioner Tucker"), and Deputy Commissioner, Department Advocate Kevin S. Richardson ("Deputy Commissioner Richardson," and, collectively with the aforementioned individuals, the "Proposed Individual Defendants," and collectively with the City, the "Proposed Defendants") for employment discrimination based on race, pursuant to 42 U.S.C. § 1983 and the New York State and New York City Human Rights Laws; and violations of the First Amendment rights of Plaintiffs Raymond, Polanco, Serrano, Waller, and Gonzalez, pursuant to 42 U.S.C. § 1983, seeking damages and injunctive and declaratory relief.³ (Docket Entry No. 66–1.)

The Court has considered the parties' submissions carefully. As explained below, Plaintiffs' motion is granted in part and denied in part.

I. BACKGROUND

The Court assumes the parties' familiarity with the background of this case as recited in the Motion to Dismiss Opinion. See Raymond v. City of New York, No. 15-CV-6885-LTS-HBP, 2017 WL 892350 (S.D.N.Y. Mar. 6, 2017). The following summary of Plaintiffs' allegations is limited to those relevant to the claims asserted in the Proposed SAC. Plaintiffs' non-conclusory factual allegations are taken as true for purposes of this motion practice.

Plaintiffs allege that the NYPD maintains a policy that, in violation of a state law prohibiting quotas for law enforcement activities, directs its employees to perform a mandatory number of arrests or other police actions over a defined period of time as a performance standard, effectively establishing quotas, and that the policy "has led to a pattern and practice of discrimination against officers of Hispanic and African–American heritage on the basis of color, race and national origin." (Proposed SAC ¶¶ 3, 19.) Plaintiffs allege that "failure to meet the illegal quota[s] result[ ] in adverse employment consequences, including but not limited to negative evaluations, termination or threat of termination, lost compensation, lost overtime, denial of promotions and upgrades, denial of overtime, loss of vacation days earned, loss of accrued time earned, punitive postings and punitive transfers, suspension, investigations, charges, suspensions, formal and informal discipline, assignments to undesirable and/or particularly dangerous tasks, punitive postings and punitive transfers, all leading and contributing to a hostile working environment and racially disparate treatment of the minority police officers." (Id. ¶ 22.) Plaintiffs, who are Latino and African–American police officers currently or formerly employed by the NYPD, sue on behalf of themselves and of a putative class of "approximately 6,000" Black and Latino NYPD officers, "who will have been and will be affected by the imposition of the illegal quota system," pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2). (See id. ¶¶ 213–17.)

Plaintiffs characterize the roles of the Proposed Individual Defendants as follows. In his capacity as mayor, Defendant Mayor de Blasio "routinely met with the Police Commissioner[,] Deputy Police Commissioners[,] and other high[-]ranking members of the NYPD to set policy and make recommendations relating to the polic[i]es, administration, practices, customs[,] and procedure[s] of the NYPD and relating to the disciplinary system and implementation of penalties within the NYPD." (Id. ¶ 60.) In his capacity as Commissioner, Bratton was the "principal administrator" of the NYPD, "responsible for the application of the NYPD's enforcement and administrative polic[i]es[,] including its internal investigatory and disciplinary process." (See id. ¶ 61.) As Chief of Department, O'Neill was "the highest ranking non-civilian ... uniformed police officer" and "in charge of all NYPD operations answering only to the Police Commissioner and the Mayor." (See id. ¶ 62.) Proposed Defendant Inspector McCormack was the commanding officer of the NYPD's 40^th Precinct from September 27, 2011, to May 2014, at which point the Plaintiffs allege "he was transferred out of the precinct" following media reports "that he was recorded pressuring a police officer to target young [B]lack males." (Id. ¶ 63.) Proposed Defendant Inspector Tsachas was the commanding officer of Transit District 32 from June 2015 to June 2016. (Id. ¶ 64.) Proposed Defendant Tucker is the First Deputy Police Commissioner of the NYPD, and he allegedly "set policy, directed personnel, approved penalties and made recommendations as to all penalties regarding all disciplinary matters within the NYPD," and chaired Steering Committee meetings where "penalties are discussed and recommendations made" regarding disciplinary actions against Black and Latino NYPD officers. (Id. ¶ 65.) Proposed Defendant Tucker also chairs the Special Monitoring Committee, a body within the NYPD that determines whether to place NYPD officers in a Performance Monitoring Program (the "PMP"). (Id. ) Proposed Defendant Kevin S. Richardson is a Deputy Commissioner of the NYPD as well as the Commanding Officer of the NYPD's Advocate's office, and he allegedly "routinely met with other defendants to set policy, approve penalties, and make recommendations regarding disciplinary matters," and participates in Steering Committee meetings and the Special Monitoring Committee. (Id. ¶ 66.)

The Proposed SAC generally alleges that the Proposed Individual Defendants knew or should have known of the customs, practices, and policies described in the...