Tullo v. City of Mount Vernon

• Decision Date: 19 December 2002
• Docket Number: No. 01 Civ. 1738 DC.,No. 01 Civ. 1248 DC.,01 Civ. 1248 DC.,01 Civ. 1738 DC.
• Parties: Richard TULLO and John Hyland, Plaintiffs, v. CITY OF MOUNT VERNON, Willie DuBose, and Yuhanna Edwards, Defendants.
• Court: U.S. District Court — Southern District of New York

237 F.Supp.2d 493

Richard TULLO and John Hyland, Plaintiffs, v. CITY OF MOUNT VERNON, Willie DuBose, and Yuhanna Edwards, Defendants.

No. 01 Civ. 1248 DC.

No. 01 Civ. 1738 DC.

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

December 19, 2002.

Michael Colihan, Brooklyn, NY, for Plaintiffs.

Law Offices of Rains & Pogrebin, By Ernest R. Stolzer, Julie A. Torrey, Mineola, NY, for Defendants.

OPINION

CHIN, District Judge.

In this discrimination case, plaintiffs Richard Tullo and John Hyland allege that defendants the City of Mount Vernon, Willie DuBose, and Yuhanna Edwards unlawfully suspended them and terminated their appointments with the Mount Vernon Auxiliary Police Department (the "Department") because of their race and without due process. Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Defendants present compelling evidence that Tullo and Hyland, who are Caucasian, were suspended not because of their race but because they impeded an investigation into allegations that they racially harassed and physically threatened an African-American officer. Defendants also present evidence that Tullo and Hyland were dismissed in accordance with Department procedures, and that the procedures are consistent with due process.

Although plaintiffs deny the allegations, they have not presented sufficient evidence to raise an issue for trial as to whether race was a factor in the defendants' decisions to suspend them and terminate their appointments. Moreover, plaintiffs do not address the merits of their due process claim in their opposition to the motion. Accordingly, and for the reasons set forth below, defendants' motion is granted.

BACKGROUND

A. The Facts

Construed in the light most favorable to plaintiffs, the facts are as follows:¹

1. Plaintiffs' Appointment to the Department

The Mount Vernon Auxiliary Police is a voluntary force that assists the Mount Vernon Police Department by performing crowd control at parades, controlling traffic, and maintaining a police presence at various public events. (Edwards Dep. at 14). Auxiliary police do not receive a salary, nor are they entitled to sick leave, personal or vacation leave, or health insurance, except that they are covered by Worker's Compensation under New York state law. (Tullo Dep. at 13).

Tullo and Hyland became Chief and Deputy Chief of the Department in 1993 and 1994, respectively. (Id. at 12). Major Burrell, an African-American male, served as Deputy Chief of the Department from 1998 to 1999. (Id. at 52). Hyland and Burrell reported to Tullo, and Tullo was supervised by the Commissioner and Deputy Commissioner of the Department. (Id. at 48-49).

The Commissioner of the Department when plaintiffs were appointed was Raynor DeRizzio, a Caucasian male. (Id. at 52). Willie DuBose, an African-American male, became the Commissioner in or around late May 2000. Yuhanna Edwards, an African-American male, held the position of Deputy Commissioner of the Department at all times relevant to this action. (Id.). At the time of their dismissal, plaintiffs were supervised by DuBose and Deputy Commissioners Edwards, Logan, and Worrell, all of whom were African-American. (Id. at 47).

2. The Comment About Hiring Hyland

Hyland interviewed for the position of Deputy Chief in 1994, with Tullo, DeRizzio, and then-Captain Lombardi, another Caucasian officer. (Tullo Dep. at 51). Although he did not interview Hyland, Edwards stated that he did not want to hire him because it would "[make] the rank structure too white." (Id.). Hyland was hired anyway.

3. Plaintiffs' Work Performance

Tullo and Hyland had no disciplinary history prior to their suspension. In addition to supervising his work for the Department, Edwards supervised Tullo's research for a Master's Degree in Human Services Administration from Audrey Cohen College, which Tullo received in 1996. (Id. at 10). As his master's project, Tullo developed rules and regulations governing the Department with Edwards's feedback. (Id.). Edwards was "very" helpful in this regard and gave positive reviews regarding Tullo to Audrey Cohen College. (Id.).

4. Denial of Promotion to Commissioner

Before DeRizzio left the Department in 2000, Tullo submitted his application for Commissioner to DeRizzio and asked him to pass it on to whomever would appoint a new Commissioner. (Id. at 115). Tullo followed up with DeRizzio a few days later. According to Tullo, DeRizzio stated that Tullo "wasn't going to get it. They had a white police commissioner, white police chief, and they didn't want another white boss of the police department." (Id.).

5. Suspicions of Hostility

Hyland testified that after DeRizzio left his post, Edwards and the other African-American officers began treating plaintiffs with hostility. (Hyland Dep. at 68). According to Tullo, Deputy Commissioners Logan and Worrell wrote memos changing the reporting procedures and assigning plaintiffs "sergeant" duties, which Tullo referred to as the "garbage part of the jobs." (Tullo Dep. at 46). Tullo believed this was an effort to motivate plaintiffs to leave because they are Caucasian. (Id.).

Although he testified that Burrell did not assume his or Hyland's duties while at the Department, Tullo suspected that the Commissioners were grooming Burrell to replace him. (Id. at 105). This was because of "snide remarks" from Edwards, Logan, and Worrell and their insistence that plaintiffs bring Burrell "up to speed" quickly. (Id.). Hyland also thought that Edwards and DuBose reassigned some of his responsibilities to Burrell. (Hyland Dep. at 75).

6. The June 9, 2000 Complaint

On June 9, 2000, Commissioner DuBose received a written complaint from Auxiliary Police Corporal David Middleton, who is African-American, alleging that Tullo and Hyland threatened him with physical violence and racially harassed him. Middleton's complaint alleged four incidents:

— On March 10, 2000, Hyland allegedly stated "N____s should'nt [sic] be running the City of Mt. Vernon anyway," and "If they had a White Mayor Mt. Vernon would'nt [sic] have the problems they have." (See Edwards Aff. Ex. 1, Letter of June 9, 2000 from Corporal Middleton to Commissioner DuBose) (hyphens in original).

— On May 1, 2000, Hyland allegedly told Middleton that Middleton was "In A Lot of S___t" for not locating a missing radio more quickly than he did. (Id.).

— On May 10, 2000, in the course of correcting Middleton's instructions to Corporal Wolpow, Tullo allegedly stated "I'ts Done This Way None Of This N____R S___T." [sic]. (Id.).

— On June 8, 2000, when Middleton advised Tullo that DuBose had approved a fourteen-day leave of absence for him, Tullo allegedly responded with verbal abuse, profanity, and threats of bodily harm. In particular, Tullo allegedly stated, "I've Wanted to Punch You In The Mouth for The Past Four Years And I'd Like To Do It Now," and threatened to fire Middleton if he did not appear for his tour. (Id.).

Although plaintiffs admit that Tullo threatened to punch and fire Middleton, they deny that they used racially derogatory language. (Tullo Dep. at 110-12). For the purposes of this motion, I accept their denials as true.

7. The Investigation

Upon receiving Middleton's complaint, Commissioner DuBose assigned Deputy Commissioner Edwards to investigate the allegations. Although Departmental regulations provide for the Deputy Chief to investigate complaints, because the allegations here were made against the Deputy Chief, DuBose assigned Edwards to investigate.

The procedures governing the discipline of Department members are established by Interim Orders 10/96 and 4/96. Interim Order 10/96 provides, in pertinent part:

Upon receipt of a written complaint, the Deputy Chief shall investigate the allegation. If the allegation is determined to have merit, the Deputy Chief shall schedule a disciplinary interview with the accused and the Commissioner or his designee within two weeks of determining that the allegation warrants further action.

(Edwards Aff. Ex. 3, Interim Order 10/96, Dated March 1, 1996). Interim Order 4/96 provides that the Commissioner may suspend a member of the Department for administrative or disciplinary reasons, and that

[a]ll members of the Department placed on either an administrative leave or disciplinary suspension must surrender their Department shield and ID card.

(Edwards Aff. Ex. 10, Interim Order 4/96). The regulations do not specify in any more detail how investigations are to be conducted.

On June 28, 2000, Deputy Commissioner Edwards informed plaintiffs of the allegations and attached a copy of Middleton's complaint. (Edwards Aff. Exs. 4, 5, Letters dated June 28, 2000). The letters advised plaintiffs that

You are being provided an opportunity to respond to the allegation. Kindly submit your written response and a list of witnesses you may have to me by no later than the close of the business day on Friday, July 7, 2000.

(Id.).

On July 1, 2000, Hyland wrote Edwards that "given the late date and the Independence Day holiday, I cannot properly respond to these allegations on such short notice." (Edwards Aff. Ex. 11, Letter from Hyland to Edwards dated July 1, 2000). Instead, Hyland wrote that he "intend[ed] to provide ... a response to the allegations on or before July 28, 2000." (Id.). Tullo received Edwards's letter on July 8, 2000. He informed DuBose that he had conferred with Hyland and also intended to respond by July 28, 2000. (Edwards Aff. Ex. 12, Letter from Tullo to DuBose dated July 9, 2000).

8. Plaintiffs' Suspension

On July 11, 2000, Edwards informed plaintiffs that he considered their failure to respond by July 7 to be a violation of a Departmental directive and that the violation was undermining the progress of the investigation. (Edwards Aff. Exs. 6, 7). Consequently, Edwards stated that he would recommend their immediate suspension. (Edwards Aff. Exs. 6, 7). On July 11, 2000, Commissioner DuBose...