Wimmer v. Suffolk County Police Dept.

• Decision Date: 05 May 1999
• Docket Number: Docket No. 97-7321
• Citation: 176 F.3d 125
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 1463 Paul WIMMER, Plaintiff-Appellant, v. SUFFOLK COUNTY POLICE DEPARTMENT and Peter F. Cosgrove, Commissioner of Suffolk County Police Department, Defendants-Appellees, Suffolk County, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

Page 125

176 F.3d 125

79 Fair Empl.Prac.Cas. (BNA) 1463

Paul WIMMER, Plaintiff-Appellant, v. SUFFOLK COUNTY POLICE DEPARTMENT and Peter F. Cosgrove,

Commissioner of Suffolk County Police Department,

Defendants-Appellees,

Suffolk County, Defendant.

Docket No. 97-7321.

United States Court of Appeals, Second Circuit.

Argued Nov. 5, 1997.

Decided May 5, 1999.

Traycee Ellen Klein, Dienst & Serrins, LLP, New York, NY, for Plaintiff-Appellant.

Christopher A. Nicolino, Assistant Suffolk County Attorney, Hauppauge, N.Y. (Robert J. Cimino, Suffolk County Attorney, Hauppauge, NY, of counsel, Theodore D. Sklar, James M. Catterson, on the brief), for Defendants-Appellees.

Before: MINER and PARKER, Circuit Judges, and DEARIE, District Judge. ^*

MINER, Circuit Judge:

Plaintiff-appellant Paul Wimmer appeals from a judgment entered in the United States District Court for the Eastern District of New York (Wexler, J.) dismissing his claims for money damages against defendants-appellees For the reasons that follow, we affirm.

Suffolk County Police Department (the "Police Department" or "Department") and Peter F. Cosgrove, Commissioner of the Department. Wimmer, who was a probationary police officer in the Department, alleged that he was terminated at the end of his probationary period because of his stance against racism in the Department and his political beliefs. Wimmer brought a claim of retaliation under 42 U.S.C. § 2000e-3(a) (1994) ("Title VII") and N.Y. Executive Law § 296(1)(e) (McKinney 1993), ¹ and a claim under 42 U.S.C. § 1983 (1994) for deprivation of his rights under the First and Fourteenth Amendments. At trial, the district court granted judgment as a matter of law on the former claim at the end of Wimmer's case, reasoning that Wimmer had not presented any evidence that he was engaged in a "protected activity" under Title VII. With respect to the § 1983 claim, the court granted judgment as a matter of law at the end of the defendants' case, determining that Wimmer had not presented evidence that the Commissioner had established an actionable "policy" or "custom" or that he had acted to deprive Wimmer of his constitutional rights under § 1983.

BACKGROUND

After passing a civil service exam, Wimmer was appointed to serve as a probationary member of the Department in late March of 1993. Department procedures required Wimmer to undergo six months of training at the Suffolk County Police Department Academy (the "Academy"), followed by twelve weeks of field training.

Within the first few days of his attendance at the Academy, Wimmer submitted a self-introduction statement in accordance with Academy policy. In this statement, Wimmer described his "career expectation" as becoming a "Detective Lietenant (sic), commanding officer of the Homicide Squad, perhaps making CAPTAIN." Wimmer expanded on his background and goals, writing,

I am an ethicist, a lover of wisdom and justice.... I find myself respecting the rights of the accused whereas I "ALWAYS" treat "All" Persons with "equal" concern and respect.... I have recently been nominated Vice President of Humanity Against HATRED.... My legal mentor is Thurgood Marshall, and my Local hero is the Honorable Judge (retired) Stuart Namm for his courage to speak out on the injustices and collusion between the local police and prosecutors. I am a white male who respects and Admires All People.

Humanity against Hatred is an organization founded by New York City police officers and clergy to oppose bias and discrimination. Wimmer named Thurgood Marshall as a hero because, "up against insurmountable odds," Marshall "got a unanimous decision" to overturn "the most racist American legal doctrine, [separate] [b]ut [e]qual." Judge Namm, a retired Suffolk County judge, was named because "he spoke out against" the "many civil rights abuses by the Suffolk County Police Department [and] ... the District Attorney [and] ... unethical police conduct in general."

Wimmer alleges that, following submission of his statement, he was "singled out" as a person who did not belong at the Academy. He recounts an episode in which he was called down to Academy headquarters and upbraided for the content of his self-introduction statement by several of his superiors. At this meeting, he was purportedly asked to resign.

Throughout his tenure at the Academy, Wimmer was required to write "internal correspondence" many times. The After graduating from the Academy, Wimmer began field training. Typically, field training involves four phases of training ("Phases I, II, III, and IV," respectively) of three weeks each. Wimmer's training took place at two police precincts, the Fifth Precinct and the Sixth Precinct. During field training, a Field Training Officer ("FTO") rides with a probationary police officer ("PPO"), observes and evaluates the PPO, and instructs the PPO in proper police procedures. FTOs fill out Field Training Daily Observation Reports ("DORs") on a daily basis to report their observations of the PPO, and a patrol supervisor fills out "End of Phase" reports to summarize the PPO's performance at the end of each phase.

"Form 42" correspondence was required in response to various violations of the disciplinary code committed by Wimmer. Wimmer attributes the disciplinary citations to a pattern of harassment by Academy instructors designed to force his resignation. Ultimately, Wimmer did not resign but instead graduated from the Academy in September of 1993. He graduated near the bottom of his class, with a final grade of 77.34--2.34 points above the minimum passing grade of 75.

Wimmer performed the first two phases of his field training at the Fifth Precinct. Generally, during Phase I, his FTOs reported on the DORs that he performed most tasks at a "minimum acceptable" level, earning a four out of a possible seven on the rating scale. Occasionally, the FTOs reported a "superior" five or six rating in various "appearance and attitude" and "officer safety" categories. Wimmer also received an "unacceptable" three rating in some of the "use of radio" categories and occasionally in other categories. The End of Phase report is generally positive in its assessment of Wimmer's performance: "[PPO] Wimmer makes a good appearance and has a good attitude toward police work. He has for the most part demonstrated acceptable performance standards for a first phase [PPO]. His use of the police radio is an area that he will need to improve as he progresses in field training."

Wimmer claims to have discussed his membership in Humanity Against Hatred with one of his FTOs, Officer Pitts, during Phase I. Apparently, Wimmer told Officer Pitts that the Mayor of New York City at the time, David Dinkins, was an honorary member of Humanity Against Hatred. In this conversation, Wimmer states that Pitts used a racial slur to refer to Dinkins, who is African-American.

During Phase II, Wimmer's ratings generally improved, although comments written by his FTOs noted several areas of deficiency. On the first day of Phase II, Wimmer's FTO, Officer Hodge, noted that "[PPO] should calm down somewhat in verbalizing what seems to be a paramount desire to achieve higher rank. While most cops would like to achieve rank we don't all speak of it as if nothing else existed on the job EXCEPT making rank." Wimmer's use of the radio had apparently improved only to a minimally acceptable level, and deficiencies were also noted in regard to report and memo book writing. Although Wimmer was criticized for his derogatory attitude toward the public and his unwillingness to accept criticism, several FTOs noted his positive attitude and enthusiasm for police work. In his End of Phase II report, the reviewing officer, Sergeant Brady, stated that "he will be an asset to the [Department]."

In the course of Phase II training, Wimmer claims to have been in a patrol car on two occasions when Officer Hodge, without probable cause, stopped a vehicle containing "minorities." Wimmer alleges he was dissuaded from asking questions about these and other incidents, and was told by Officer Hodge and another of his FTOs that he "alienate[d] cops" and "made [them] sick." He also claims to have heard racial slurs used on the police radio, which he reported to Lieutenant Williams at the Sixth Precinct.

Wimmer's field training moved to the Sixth Precinct for Phase III. On his first day of Phase III, Wimmer claims to have witnessed one of his FTOs from the Fifth Precinct speaking to Officer Ferrante, one of his FTOs at the Sixth Precinct. In Phase III, Wimmer's ratings on his DORs were generally lower than during Phases I or II. On his second day of Phase III, Officer Ferrante observed that Wimmer "appear[ed] to be far behind in field training." Ferrante noted deficiencies in report writing and radio operation and stated that Wimmer sometimes made inappropriate comments. Ferrante also criticized Wimmer for his lack of professionalism and inability to take charge of a situation. Although Officer Ferrante reported at one point that he "does not believe [Wimmer] should be a police officer," the End of Phase report, completed by Lieutenant Williams, was somewhat less harsh in its assessment: "[PPO's] evaluations are nearly entirely in the 'minimum acceptable' category. [PPO] says inappropriate remarks at times and has been counseled [in] reference [to] his tendancy (sic) to 'overtalk.' A marginal improvement in some categories, but will require extension of [FTO] training."

During Phase III, Wimmer reports that he began to be called a "liberal" and a "fruitcake" by Officer Ferrante and another officer in the Sixth Precinct. He claims that Officer Ferrante repeatedly used racial slurs and also claims to have discussed his membership in Humanity against Hatred with Ferrante.

Wimmer's FTO in Phase IV was once again Officer Ferrante. Wimmer's ratings in Phase IV deteriorated somewhat from Phase III. He began to have a larger number of "unacceptable" ratings...