Sorlucco v. New York City Police Dept.
| Decision Date | 28 July 1992 |
| Docket Number | D,No. 1518,1518 |
| Citation | 971 F.2d 864 |
| Parties | 59 Fair Empl.Prac.Cas. (BNA) 673, 59 Empl. Prac. Dec. P 41,676 Karen SORLUCCO, Plaintiff-Appellant, v. NEW YORK CITY POLICE DEPARTMENT, Defendant-Appellee. ocket 92-7165. |
| Court | U.S. Court of Appeals — Second Circuit |
Peter A. Sullivan, Brooklyn, N.Y. (Kathleen A. Sullivan, Jennifer L. Zuch, BLS Legal Services Corp., of counsel), for plaintiff-appellant.
John Hogrogian, New York City (O. Peter Sherwood, Leonard Koerner, Robert Trachtenberg, Steven J. Rappaport, New York City Corp. Counsel, of counsel), for defendant-appellee.
Richard T. Seymour, Michael Selmi, Sharon R. Vinick, Washington, D.C., filed a brief amicus curiae on behalf of Lawyers' Committee for Civil Rights Under Law.
Before: OAKES, Chief Judge, * LUMBARD and WALKER, Circuit Judges.
This case comes to us on appeal from the final judgment of the United States District Court for the Southern District of New York, Hon. Michael B. Mukasey, Judge. Following a jury trial that culminated in a verdict for plaintiff-appellant, Karen Sorlucco ("Sorlucco"), on her 42 U.S.C. § 1983 claim, the district court: (1) granted defendant-appellee, New York City Police Department's ("NYPD"), motion for judgment n.o.v.; (2) dismissed Sorlucco's claims against the NYPD for gender discrimination in violation of Title VII; and (3) in the alternative, granted the NYPD's motion for a new trial. For the following reasons, we reverse the district court's judgment, and remand the case with instructions to reinstate the jury's verdict on her § 1983 claim and enter judgment in favor of Sorlucco on her Title VII claim.
It was undisputed at trial that in January of 1983, while Sorlucco was a probationary police officer (one that had been on the force for less than 18 months) in good standing with the NYPD, she was sexually assaulted. At trial, she testified to the following. In the early morning of January 13, 1983, after finishing her shift of duty at the 94th precinct in Brooklyn, Sorlucco invited tenured NYPD officer, John Mielko ("Mielko"), to her apartment in Nassau County, New York. For some time, the two sat in Sorlucco's kitchen simply talking. While she was preparing a pot of coffee, Mielko got up from the table and left the room. He entered her bedroom where he found her service revolver. Mielko then returned to the kitchen, where, pistol in hand, he ordered Sorlucco back into the bedroom. Once there, he aimed the gun at her head and proceeded to sexually abuse her.
Sorlucco testified that this assault lasted approximately six hours, during which time Mielko brutally sodomized her. She claimed that he continuously threatened to kill her if she did not comply with his demands and that, at one point, Mielko fired a bullet from her gun into the bed. Mielko left the apartment shortly before 6:00 a.m., taking Sorlucco's service revolver with him. Sorlucco later found the gun on the front seat of her car.
Sorlucco testified that, following the attack, she was in shock and afraid for her life, and therefore, did not immediately tell anyone of the attack. The next day, January 14, Sorlucco went to the 94th Precinct to pick up her paycheck. According to Sorlucco, while she was at the station, Mielko cornered her on a stairway; when she told Mielko that she was going to report him, he threatened to kill her if she did.
On January 17, Sorlucco sought medical treatment from her gynecologist. For the first time, she confided in someone that she had been attacked, but she refused to name the man who did it. Sorlucco's doctor erroneously told her that the law required him to report the assault, and that if she did not do it herself, he would be forced to do so against her wishes.
Later that night, Sorlucco confided in her friends, Ralph and Natalie Schwartz. She told them about the attack, but did not name Mielko. The Schwartzes convinced Sorlucco to file a report with the Nassau County Police Department, and Ralph accompanied her to the local police station. At the station, Sorlucco asked to speak with a female officer but was refused. During the interview with the male officer who was assigned to take her statement, the officer made vulgar and abusive remarks to Sorlucco. Feeling twice victimized, Sorlucco left the police station without completing her statement.
Later that evening, officers from the Nassau County Police Department, along with Ralph Schwartz, went to Sorlucco's apartment and told her that she had to return to the station to complete her statement. Sorlucco complied, but did not implicate Mielko. Instead, as she testified at trial, she fabricated an account of what had happened. Sorlucco stated that the assault had occurred on January 7, not the 13th, and was perpetrated by a man named "John" whom she had met at a laundromat. The next day, January 18, Sorlucco repeated substantially the same story again to the Nassau County Police.
On the night of January 17, while Sorlucco was giving her statement, the Nassau County Police contacted the NYPD. The NYPD immediately dispatched Captain John Hunt ("Hunt") to the Nassau County precinct. Upon his arrival, he received and read a copy of Sorlucco's complaint. Thereafter, Hunt went to Sorlucco's apartment to speak with her. Since it was late, he did not press her for an account of what had happened. Instead, Hunt placed her on modified assignment--a non-patrol duty status which involves the removal of an officer's badge and gun.
According to the police regulations, an officer may be placed on modified assignment for various criminal infractions, violations of departmental regulations, and whenever the circumstances indicate that such action would be in the best interests of the department. Placing someone on modified assignment is left to the discretion of the ranking officer in-charge. There was trial testimony to the effect that "modified assignment" is commonly understood by rank and file police officers to be a stigmatizing disciplinary status.
Hunt also ordered Sorlucco to report to the department's Psychological Services Division ("Psychological Services") the next morning. He referred her case to the NYPD's Field Internal Affairs Division ("Internal Affairs") for further investigation, and forwarded a memorandum to the Police Commissioner entitled "Allegations of Serious Misconduct." This document reflected Sorlucco's claim of sexual assault by an unknown man, but nevertheless suggested that "charges and specifications" be drawn up against Sorlucco. In view of the fact that Hunt was unaware of any claim against Mielko, and thus was under the impression that Sorlucco had been lax about safeguarding her weapon in the presence of an unknown civilian, the harshness of his recommendation is somewhat tempered. However, its facial insensitivity to Sorlucco accurately foreshadowed the NYPD's internal investigation, or more appropriately--lack of investigation--which followed.
On January 21, Sorlucco returned to the Nassau County Police Department and named Mielko as her attacker. The Nassau County police notified NYPD's Lieutenant Carmine LaCava ("LaCava") of Internal Affairs that Sorlucco had accused a fellow NYPD officer of sexually abusing her. LaCava immediately went to Nassau County to confer with the police. While he was there, however, LaCava made no effort to find Sorlucco and obtain her version of what had happened. Nor, at that time, did LaCava take any preliminary action, such as ordering modified assignment for Mielko--an armed police officer who had been accused by another officer of aggravated sexual assault.
On January 26, Mielko passed a lie detector test conducted by the Nassau County Police. On February 1, Sorlucco also underwent a polygraph test administered by the Nassau County Police. According to Sorlucco, after the examiner asked her a few questions that were unrelated to the attack, he "jump[ed] up and scream[ed]" that she was "a liar, that [she] failed, [she] didn't deserve to be a cop." This outburst caused Sorlucco to become emotionally distraught and the examination ended abruptly. Sorlucco recounted that after she was accosted in this manner by the Nassau County polygraph examiner, a local police lieutenant took her from the room and told her that "if [she] did not sign a piece of paper, that [she'd] lose her job." Sorlucco signed.
Unlike the report of Mielko's successful lie detector test of January 26, which was forwarded to the NYPD, Nassau County never produced any documentation of the events surrounding Sorlucco's test. The following day, February 2, Sorlucco took a privately administered polygraph test which canvassed the circumstances of her attack and indicated that she was telling the truth.
At trial, Sorlucco testified that the paper she signed at the Nassau County Police station on February 1 was blank and furthermore, that she did not then understand that it was intended to withdraw charges against Mielko. As we shall discuss in greater depth, there was conflicting evidence at trial as to whether when Sorlucco signed the paper, she knew that she had withdrawn her complaint against Mielko.
Following the February 1 polygraph episode, Nassau County brought criminal charges against Sorlucco for having falsely stated that she did not know the man who had raped her. On May 23, she appeared at the Nassau County courthouse for arraignment on her false statement charges. Following Sorlucco's arraignment, LaCava of Internal Affairs, who was present, immediately suspended her from the NYPD without pay. The justification given for the suspension was Sorlucco's Nassau County arrest on the false statement charges. The NYPD then instituted departmental charges against Sorlucco that restated the Nassau County criminal complaint and also accused Sorlucco of failing to safeguard her service revolver and failing to report that her gun had been fired. By this time,...
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