Opinion
99 Civ. 9128 (SAS)
November 3, 2000
Scott Gale, Esq., Bronx, New York, Attorney for Plaintiff.
Laura H. Corvo, Assistant Corporation Counsel, New York, New York Attorney for Defendants.
OPINION AND ORDER
Plaintiff, Eduardo Gonzalez, a former police officer with the New York City Police Department ("NYPD"), is suing defendants, the City of New York ("City"), the NYPD, and Officers Keith Cunningham, Samuel Pannuccio and John Huber, in their individual and official capacities, pursuant to 42 U.S.C. § 1981, 1983, and 1985, alleging that his Fourth and Fourteenth Amendment rights were violated in connection with an incident that occurred on the morning of March 27, 1999. He also claims that he was wrongfully terminated from the NYPD. Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the reasons set forth below, defendants' motion is granted in its entirety.
Officer Pannuccio was sued under the wrong name.
I. Background
A. Gonzalez's History with the NYPD
Gonzalez became a police officer, assigned to the 13th Precinct, in February, 1994. See Defendants' Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Def. 56.1") ¶ 1. On November 23, 1997, while off duty, Gonzalez was involved in an altercation with his girlfriend Annette Reyes. See id. ¶ 3. On November 25, 1997, Gonzalez was charged with striking Reyes wrongfully and without just cause. See NYPD Charges and Specifications, Ex. E to Defendants' Notice of Motion, at 1. A hearing was held before Deputy Commissioner of Trials Rae Downes Koshetz. See Report and Decision, Ex. D to Defendants' Notice of Motion, at 1. Gonzalez was represented by counsel and was found guilty of the charges. See id.
On September 9, 1998, Commissioner Koshetz issued a decision recommending that Gonzalez be dismissed from the NYPD but that his dismissal be held in abeyance for a period of one year pursuant to § 14-115(d) of the Administrative Code of the City of New York, during which time Gonzalez could remain on the police force subject to the Police Commissioner's discretion. See Report and Decision at 7-8. Pursuant to § 14-115(d) of the Code, the Commissioner had the power to dismiss Gonzalez at any time during this one year period. The decision was approved by Police Commissioner Howard Safir on October 1, 1998. See Report and Decision at 8.
B. The March 27, 1999 Incident
On March 27, 1999, Gonzalez was driving with Reyes in the area of Lexington Avenue and 94th Street in Manhattan. See Def. 56.1 ¶ 20. Officers Cunningham and Huber were on patrol in that vicinity and noticed Gonzalez's car at approximately 4:30 a.m.See id. ¶ 24. Officer Huber testified as to his observations:
The horn was honking like someone needed help. The car was swerving, stopping, moving, stopping, swerving and then we saw the passenger side door kick open with feet coming out. That's what I saw, like, someone was, like, trying to get out.
Deposition of Officer John Huber ("Huber Dep."), Ex. H to Defendants' Notice of Motion, at 14. After pulling parallel with Gonzalez's vehicle, Officer Cunningham testified that he was able to observe hands "flailing in the air" and what looked like a struggle between the passenger and the driver. Deposition of Officer Keith Cunningham ("Cunn. Dep."), Ex. B to Defendants' Notice of Motion, at 15. The officers followed Gonzalez's vehicle for approximately twenty or thirty seconds before pulling him over between 88th and 89th Street and Lexington Avenue. See id. at 19. At about the same time, Officer Cunningham radioed for assistance. See id.
Reyes testified that she did not attempt to jump out of the vehicle. See Affidavit of Annette Reyes ("Reyes Aff."), Ex. J to Plaintiff's Statement of Material Facts Pursuant to Local Rule 56.1 ("Pl. 56.1"), ¶ 8. However, according to a report filed by the Duty Captain Wilfred Camargo, Reyes did state that she opened the door of the moving vehicle to throw out a lit cigarette because the window was inoperable. See Camargo's Duty Captain Report ("Camargo Rep."), Ex. K to Defendants' Notice of Motion, ¶ 6.
Gonzalez disputes this account asserting that he was not struggling with Reyes. See Deposition of Eduardo Gonzalez ("Gonz. Dep."), Ex. A to Pl. 56.1, at 26. Reyes also testified that she was not fighting with Gonzalez. See Reyes Aff. ¶ 8.
Approximately two to three minutes after being pulled over Gonzalez got out of his car "to see what was going." Gonz. Dep. at 27. Officer Cunningham testified that both he and Officer Huber instructed Gonzalez to stay in the car, see Cunn. Dep. at 22. Gonzalez did not recall receiving any instructions from the officers. See Gonz. Dep. at 28. According to Gonzalez, after he got out of the car he reached back inside to turn off the engine. As he turned back around one of the officers yelled "put your hands up." See id. at 30. In response, Gonzalez identified himself as a police officer and informed Officers Cunningham and Huber that he had a weapon. See id. at 31. Gonzalez was then instructed to place his hands on top of the car. When Gonzalez complied he was approached, handcuffed, and his weapon and identification were confiscated. See id.
According to Officer Cunningham, Gonzalez ignored the officers' requests to stay in the car and instead proceeded to the rear of the vehicle. See Cunn. Dep. at 23. Gonzalez then lifted his shirt, showed the two officers his weapon, told them he "was on the job," and then went back to the front of the car and reached into his vehicle. Id. At that point the two officers approached and handcuffed him. See id. at 26. In the course of frisking Gonzalez for additional weapons, Officer Cunningham discovered Gonzalez's shield and identification card. See id.
Shortly thereafter, other officers, including Officer Samuel Pannuccio, arrived on the scene. See id. at 29. After one of the officers at the scene identified Gonzalez as a police officer, Officer Pannuccio directed that Gonzalez be uncuffed. See Deposition of Officer Samuel Pannuccio ("Pann. Dep."), Ex. D to Pl. 56.1, at 18. At the scene, Officer Cunningham decided to notify the duty captain of the incident and he and Officer Pannuccio transported Gonzalez to the 19th Precinct for further investigation. See Cunn. Dep. at 36. Although Duty Captain Wifredo Camargo could not be reached at this time, Officer Cunningham called and spoke to Captain Camargo as soon as they arrived at the station house. See id.
NYPD Patrol Guide 116-35 directs that if a member of service is dissatisfied with the handling or result of a confrontation between an on duty uniformed officer and a nonuniformed off duty officer, the on duty officer is to request a patrol supervisor from the precinct of occurrence and/or supervisory officer on duty to respond. The patrol supervisor should then have the members involved report to the station house of the precinct of occurrence. See Patrol Guide 116-35, Ex. G to Defendants' Notice of Motion, at 2.
Captain Camargo was the duty captain for the area surrounding the 19th Precinct on the morning of the incident. See Deposition of Wilfredo Camargo ("Cam. Dep."), Ex. J to Defendants' Notice of Motion, at 10.
Upon arrival at the 19th Precinct, Gonzalez was escorted into an office by Officer Pannuccio. See Pann. Dep. at 23. Gonzalez alleges that while in the office, Officer Pannuccio said to him in a nasty demeanor, "[a]re you a cop or what?" Gonz. Dep. at 36. Although he claims Officer Pannuccio made other derogatory comments, he could not recall any of them at his deposition. Id. Within fifteen to thirty minutes of Gonzalez's arrival at the station house, a delegate from the Patrolmen's Benevolent Association ("PBA") spoke with him about the incident. See id. at 38. After describing the incident to the delegate, Gonzalez invoked the "48 Hour" rule. Gonzalez testified that he was kept at the station for approximately eight to nine hours. See Gonz. Dep. at 40. He also testified that after five hours he asked for permission to leave to see his grandmother, but permission was denied. See id. at 44.
According to Gonzalez, this rule prohibited any questioning of him for 48 hours. See Gonz. Dep. at 41.
A short time after Gonzalez arrived at the station, Captain Camargo arrived and conducted an investigation into the incident. During the course of his investigation he interviewed, or supervised the interviews of Reyes, and Officers Cunningham, Huber, and Pannuccio. See Def. 56.1 ¶ 57. Captain Camargo concluded that Gonzalez was unfit for duty and ordered him placed on modified assignment effective at 10:30 a.m. on March 27, 1999.See Cam. Dep. at 25. Captain Camargo further recommended that Charges and Specifications be prepared by Gonzalez's Commanding Officer. See Def. 56.1 ¶ 58.
As a requirement of his modified status, on the morning of March 29, 1999, Gonzalez reported to the Employee Management Division ("EMD") at One Police Plaza. From there he was sent to an alcohol treatment program at the police counseling unit in Brooklyn. See Gonz. Dep. at 50-51. Gonzalez refused to attend the program. See id. That same day he was suspended from duty. See Suspension Report, Ex. L to Defendants' Notice of Motion.
On April 1, 1999, Charges and Specifications were brought against Gonzalez. Pursuant to established NYPD procedures, as an officer on dismissal probation, Gonzalez's case was sent before a three member Committee from the EMD to determine whether he should be dismissed from the force. See Def. 56.1 ¶ 62. Based on a review of the relevant files concerning the March 27, 1999 incident, as well as the files relating to Gonzalez's dismissal probation, the EMD Committee recommended that Gonzalez be dismissed. See id. ¶ 63. Gonzalez was terminated from employment with the NYPD effective May 3, 1999. See Termination Notice, Ex. O to Defendants' Notice of Motion.
The Charges alleged that Gonzalez (1) wrongfully operated a motor vehicle while under the influence of an intoxicant; (2) was unfit for duty due to having consumed an unknown quantity of an intoxicant and; (3) was unfit for duty due to the consumption of alcohol while armed with a firearm. See Charges and Specifications, Ex. M to Defendants' Notice of Motion. Gonzalez stated that he may have had two beers at around 9:00 p.m. the night before the incident. See Gonz. Dep. at 46. Reyes testified that Gonzalez had consumed two beers that night. See Reyes Aff. ¶ 2. Because he was summarily dismissed these charges were never adjudicated.
II. Summary Judgment Standard
A motion for summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). The moving party has the burden of identifying the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). Once such a showing is made, the Opposing party must produce sufficient evidence to permit a reasonable jury to return a verdict in its favor, identifying "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). The Second Circuit has summarized the standard as follows:
While genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law. A reasonably disputed, legally essential issue is both genuine and material and must be resolved at trial.Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (quotation marks and citations omitted). In determining whether summary judgment should be granted, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. See D'Amico v. City of New York, 132 F.3d 145, 148 (2d Cir.), cert. denied, 524 U.S. 911 (1998).
III. Discussion
A. Gonzalez's Claims Against the NYPD
Gonzalez has named the NYPD as a defendant in this action. However, organizational subdivisions of the City, such as the NYPD, "lack independent existence and as such cannot be sued."Jeffreys v. City of New York, No. 99 Civ. 4602, 2000 WL 1459845, at *3 (S.D.N.Y. Sept. 29, 2000); see also Fannelli v. Town of Harrison, 46 F. Supp.2d 254, 257 (S.D.N.Y. 1999) (court found the Town of Harrison Police Department to be "merely [an] administrative arm of the municipality," and as such, under New York law it could not sue or be sued). Accordingly, Gonzalez's claims against the NYPD are dismissed. B. Gonzalez's Claims under 42 U.S.C. § 1983
The dismissal of Gonzalez's claims against the NYPD does not preclude his claims against the City. Section 396 of the New York City Charter proscribes that "[a]ll actions and proceedings for the recovery of penalties . . . shall be brought in the name of the City of New York and not that of any agency, except where otherwise provided by law." New York City Charter, Ch. 17 § 396.
In order to state a cause of action under 42 U.S.C. § 1983, a plaintiff must establish that (1) the conduct complained of was "committed by a person acting under color of state law; and (2) the conduct . . . deprived the plaintiff of [his or her] rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Although section 1983 creates no substantive rights, it provides a "procedure for redress for the deprivation of rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). It is not contested that defendants were acting under color of state law, therefore I need only address the second prong of the inquiry — whether Gonzalez suffered a violation of his constitutional rights.
1. Gonzalez's Equal Protection Claim
The Equal Protection Clause of the Constitution mandates that all persons "similarly situated . . . be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) Gonzalez asserts that Officers Cunningham and Huber violated his equal protection rights by stopping his car while not stopping other cars that were also traveling on Lexington Avenue on the morning of the incident.
In order to establish a violation of equal protection based upon selective enforcement, a plaintiff must show that he or she was (1) selectively treated as compared with others similarly situated and (2) that such selective treatment was based on "impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Latrieste Restaurant Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980)).
Gonzalez has offered no evidence indicating that his car was selectively stopped over other vehicles traveling on Lexington Avenue and, more importantly, there is nothing in the record demonstrating that Officers Cunningham and Huber pulled him over because of an impermissible consideration. See Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 17 (2d Cir. 1999) ("[T]he key issue in an equal protection claim alleging selective enforcement [is] impermissible motive."). The mere fact that Gonzalez and Reyes were stopped by white police officers does not constitute evidence of selective enforcement. See Yusuf v. Vassar College, 35 F.3d 709, 714 (2d Cir. 1994) (naked allegations of racial discrimination will not suffice to prove selective enforcement). Accordingly, Gonzalez has failed to demonstrate a genuine issue of fact that would require a trial of his equal protection claim.
2. The Roadside Stop
By its own terms, the Fourth Amendment proscribes unreasonable . . . seizures." U.S. Const. amend. W. A traffic stop has been adjudicated to be a limited seizure within the meaning of the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 809-10 (1996). Under Terry v. Ohio, 392 U.S. 1 (1968), an investigative stop by a police officer may be deemed reasonable if it is supported by either probable cause or reasonable suspicion, provided the reasonable suspicion is based on specific and articulable facts indicating that the individual stopped is engaged or about to engage in unlawful activity. See also United States v. Sokolow, 490 U.S. 1, 7 (1989). A police officer's observation of a traffic offense, however minor, gives the officer reasonable suspicion to stop the driver of the vehicle for further investigation. See United States v. Dhinsa, 171 F.3d 721, 726 (2d Cir. 1998); see also United States v. Scopo, 19 F.3d 777, 782 (2d Cir. 1994).
According to the deposition testimony of both Officers Cunningham and Huber, they first noticed Gonzalez's car because the horn was honking. See Cunn. Dep. at 15-16; Huber Dep. at 14. Officer Huber also testified that he observed the car swerving and being driven in an erratic manner. See Huber Dep. at 14. Additionally, both officers observed the passenger door of the vehicle open and what they believed to be the passenger attempting to flee from the car. See Cunn. Dep. at 17-18; Huber Dep. at 14. Officer Cunningham specifically testified that upon pulling parallel with the Gonzalez car, he saw hands "flailing in the air" and what looked like a struggle between the passenger and the driver. See Cunn. Dep. at 15.
Reyes stated that she opened the door of the moving vehicle to throw out a lit cigarette because the window was inoperable.See Camargo Rep. ¶ 6. Additionally, Reyes testified that during the course of the investigation into the incident she was accompanied to Gonzalez's car by two officers who "checked the passenger window of the car to confirm that [she] was telling the truth concerning the broken door." Reyes Aff. ¶ 13.
Although Gonzalez testified in his deposition that he was not struggling with Reyes, see Gonz. Dep. at 26, and Reyes stated in her affidavit that she and Gonzalez were "not fighting, [she] did not honk the horn, [and she] did not try to jump from the car,"see Reyes Aff. ¶ 8, Gonzalez has not denied that he was driving erratically, or that Reyes in fact opened the door of the car while it was moving. Because the officers observed Gonzalez commit a traffic violation, i.e., reckless driving, the initial stop of Gonzalez's car was reasonable within the meaning of the Fourth Amendment. See United States v. Muyet, 946 F. Supp. 302, 306 (S.D.N.Y. 1996) (defendant who was observed driving recklessly by a police officer was properly stopped)
The next question is whether the subsequent search and seizure of Gonzalez was reasonable. Under Terry, in determining whether police officers are justified in frisking a temporarily detained person the courts must apply an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant [an officer] of reasonable caution in the belief that the action taken was appropriate?" Terry, 392 U.S. at 21-22 (internal citation omitted).
Gonzalez testified that he exited the vehicle before being instructed to do so by the officers. See Gonz. Dep. at 28. After exiting, Gonzalez turned and reached back into the vehicle to turn the car off. See id. When Gonzalez turned around he was told to put his hands up. See id. Gonzalez then identified himself as a police officer and told Officers Cunningham and Huber that he had a weapon. He was then told to place his hands on top of the car, which he did, whereupon he was approached, handcuffed, and his wallet, ID and weapon were confiscated. See id. at 31. When an officer from Gonzalez's precinct arrived on the scene and verified that he was a police officer, Officer Pannuccio directed that Gonzalez be uncuffed. See Pann. Dep. at 18.
Gonzalez also testified that he exited his vehicle before Officers Cunningham and Huber exited their patrol car. See Gonz. Dep. at 27.
These facts establish that Officers Cunningham and Huber acted appropriately and within the bounds of the Fourth Amendment. Officers Cunningham and Huber observed Gonzalez exit his car before being instructed to and then reach back into his car to turn it off. Gonzalez then indicated he had a weapon and identified himself as police officer, but never showed the officers his police identification or his shield. On these facts alone, the officers' acts of restraining and searching Gonzalez at the scene of the incident were reasonable under the principles set forth in Terry.
Both Officers Cunningham and Huber testified that they saw Gonzalez's weapon when he got out of his car. See Cunn. Dep. at 23; Huber Dep. at 27.
3. Gonzalez's False Arrest Claim — The Detention at the Station House
A seizure occurs when "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). A section 1983 claim for false arrest that relies on the Fourth Amendment right to be free from unreasonable seizures is substantially the same as a claim for false arrest under New York law. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Under New York law, "a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification." Id.
Defendants assert that Gonzalez was brought to the station pursuant to the procedures set forth in NYPD Patrol Guide Procedure No. 116-35, and was informed that although he would be suspended if he left the station during the investigation, he was free to leave at any time. Therefore, defendants assert, Gonzalez's liberty was never jeopardized and he was never intentionally confined without consent.
See infra note 4.
Officer Pannuccio testified that he told Gonzalez he was not under arrest and was allowed to leave, but if he did so, he would be suspended. See Pann. Dep. at 25. This is also reiterated in Camargo's Report at ¶ 4. Gonzalez does not deny being so informed.
Gonzalez testified that after being required to report to the station house, he was kept there for approximately eight to nine hours. See Gonz. Dep. at 40. He also testified that after approximately five hours of waiting, he asked permission to leave to see his grandmother and was denied. See id. at 44. Accepting plaintiff's version of the facts, as required, I must conclude that Gonzalez was seized.
The next question is whether the seizure was justified. Defendants maintain that even if Gonzalez was seized, the seizure was reasonable and justified because of his status as a police officer. See Defendants' Memorandum of Law in Support of their Motion for Summary Judgment at 8-10. In determining reasonableness under the Fourth Amendment, the courts "must balance the intrusiveness of the [seizure] on the individual's fourth amendment interests against [the] promotion of legitimate governmental interests." Security Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 201 (2d Cir. 1984). Factors a court must consider are "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979).
In Biehunik v. Felicetta, 441 F.2d 228 (2d Cir. 1971), a police commissioner's order commanding sixty-two policemen, upon pain of discharge, to appear in a lineup despite any showing of probable cause, was found to be reasonable. In its decision, the court emphasized the "substantial public interest in ensuring the appearance and actuality of police integrity" and stated that "[s]o long as the actions of a policeman's superior remain within reasonable bounds, there can hardly be that affront to expectations of personal autonomy which marks the state's coercive power in the typical arrest case." Id. at 230-31. The court further explained that due to this substantial public interest, policemen will at times be required to tolerate invasions of their freedoms which are "reasonably related to the special considerations arising from their relationship of employment." Id. at 231. Moreover, the court recognized that a "policeman's employment relationship by its nature implies that in certain aspects of his affairs, he does not have the full privacy and liberty from police officials that he would otherwise enjoy." Id.
Applying the principles enunciated in Biehunik, the seizure of Gonzalez did not violate the Fourth Amendment. At the time Gonzalez was detained the police had substantial evidence that Gonzalez had acted unlawfully. The decision to investigate the incident was within Captain Camargo's "reasonable bounds of discretion," and, in fact, was mandated by NYPD Patrol Guide 116-35. Gonzalez's cooperation with the investigation was mandated by his job as a police officer. Further, if the Fourth Amendment prevented senior officers from detaining off-duty officers at the station until a proper investigation is completed, it would "unduly hamper police officials in their difficult task of supervising and maintaining a dependable and trusted police force." Id. at 232; see also Sanchez v. City of New York, No. 96 Civ. 7254, 2000 WL 987288, at *4 (S.D.N.Y. July 17, 2000) (where there was substantial evidence that plaintiff had disobeyed a superior officer's order, placing him on duty for a period of several hours was an invasion of liberty reasonably related to his employment relationship and therefore did not constitute an unreasonable seizure as a matter of law).
For these reasons, I conclude, as a matter of law, that the seizure of Gonzalez was not unreasonable within the meaning of the Fourth Amendment.
4. Gonzalez's Due Process Claim
Gonzalez claims that the City violated his procedural due process rights under the Fourteenth Amendment when it terminated him from the police force. To establish a valid claim for deprivation of procedural due process under 42 U.S.C. § 1983, Gonzalez must first show that the City deprived him of a right secured by the law. See Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996). Accordingly, Gonzalez must show he had a legitimate claim of entitlement to his continued employment under state or federal law in order for his section 1983 claim to be valid. See Board of Regents v. Roth, 408 U.S. 564, 577 (1993).
Probationary employees, however, lack a legitimate claim of entitlement and therefore the requisite property interest in the expectation of continued employment to establish a valid claim under section 1983. See Donato v. Plainview-Ole Bethpage Cent. Sch. Dist., 96 F.3d 623, 629-30 (2d Cir. 1996); see also Fitzgerald v. Feinberg, No. 98 Civ. 8885, 1999 WL 619584, at *3 (S.D.N.Y. Aug. 16, 1999). Under New York law, it is well settled that probationary employees have no property rights in their positions and can be terminated without a hearing or a specified reason. See Finley, 79 F.3d at 1297 (citations omitted).
It is not contested that Gonzalez was on dismissal probation pursuant to § 14-115 of the Code on the date he was terminated. The relevant portion of the code states:
As stated earlier, Gonzalez was on a one year probationary dismissal because of charges stemming from an altercation with Reyes. The decision to place Gonzalez on probation was approved on October 1, 1998. See Report and Decision at 8. Gonzalez was terminated on May 3, 1999, while he was still on probation. See Termination Notice, Ex. O to Defendants' Notice of Motion.
Upon having found a member of the force guilty of the charges preferred against him or her, either upon such member's plea of guilty or after trial, the commissioner or the deputy examining, hearing and investigating the charges, in his or her discretion, may suspend judgment and place the member of the force so found guilty upon probation, for a period not exceeding one year; and the commissioner may impose punishment at any time during such period.
New York City Administrative Code § 14-115(d) (emphasis added).
Accordingly, because of his probationary status, Gonzalez had no property interest in his continued employment and was not entitled to procedural due process upon his termination.
C. Gonzalez's Claim under 42 U.S.C. § 1981
In order to establish a claim under section 1981, a plaintiff must show that (1) he or she is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) that the discrimination concerned an activity enumerated by section 1981. See Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 1999). A plaintiff may bring a claim of discriminatory termination under section 1981. See Lauture v. International Bus. Machs. Corp., 216 F.3d 258, 261 (2d Cir. 2000).
In an employment discrimination case, whether brought under Title VII, or section 1981, the plaintiff has the "burden of proving by the preponderance of evidence a prima facie case of discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); see also Choudhry v. Polytechnic Inst., 735 F.2d 38, 44 (2d Cir. 1984) (same analysis for both Title VII and § 1981). If the plaintiff can establish a prima facie case, the burden shifts to the employer who must show a legitimate, non-discriminatory reason for the plaintiff's termination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If such a showing is made, plaintiff retains the ultimate burden of proving that the defendant's reason was merely a pretext for discrimination. See id. at 804; see also Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000).
In order to make out a prima facie case of discriminatory termination, a plaintiff must establish that: (1) he or she is a member of a protected class; (2) he or she was qualified for the position; (3) he or she suffered an adverse employment action; and (4) the adverse employment action took place under circumstances that give rise to an inference of unlawful discrimination. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir. 1997) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 § n. 6 (1981)). Plaintiff's burden of proof at the prima facie stage is de minimis. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). Nonetheless, a plaintiff must proffer some admissible evidence of circumstances that would be sufficient to permit an inference of discriminatory motive. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995).
In this regard, courts "must carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture . . . After all, `[a]n inference is not a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of another fact [that is known to exist].'" Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999) (quoting Leonard B. Sand, et al., Modern Federal Jury Instructions ¶ 6.01, instr. 6-1 (1997)).
Gonzalez cannot make out a prima facie case of discriminatory termination. A thorough search of the record reveals no evidence that Gonzalez's termination took place under circumstances giving rise to an inference of unlawful discrimination. When asked how Officer Cunningham discriminated against him, Gonzalez testified:
Well the reason, I think we were stopped — I have a black Continental that looks like a cab and that might have been a factor why he felt he could stop us. All of the officers were white. I identified myself as a police officer and they couldn't believe I was a cop.
Gonz. Dep. at 55-56. When asked how Officer Huber discriminated against him, Gonzalez further testified:
He disrespected the fact that I was a police officer. He totally disrespected the fact I was a police officer.Id. When asked if Officer Pannuccio said anything to him when he was escorted into the captain's office, Gonzalez testified that Officer Pannuccio said, "[a]re you a cop or what?" Id. at 36. Finally, when asked if he heard any specific racial comments, Gonzalez testified, "[t]hey weren't of that nature, but I prefer to say no more because I didn't hear it too clearly." Id. at 62.
Although discrimination cases turn on factual questions regarding a party's intent, the Second Circuit has held that "[s]ummary judgment is appropriate even in discrimination cases."Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); see also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation."). Even viewed in an extremely favorable light, Gonzalez's testimony is insufficient to raise an inference that his termination was somehow related to unlawful discrimination. Accordingly, Gonzalez cannot establish a prima facie case of discriminatory termination and this claim is dismissed.
D. Gonzalez's Claim under 42 U.S.C. § 1985(3)
Section 1985 prohibits conspiracies that intend to deprive "either directly or indirectly, any person . . . of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). Such a claim requires the plaintiff to demonstrate an agreement or meeting of the minds between the conspirators to violate his or her constitutional rights, see Brown v. City of Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997), and the conspiracy must be motivated by racial or related class-based discriminatory animus. See Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994).
Gonzalez has offered no evidence suggesting that defendants entered into an agreement to violate his constitutional rights.See Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (court granted motion to dismiss when the claims of conspiracy were based on "conclusory, vague or general allegations"). In addition, as discussed earlier, there is nothing in the record indicating the existence of racial animus on the part of defendants.
E. Qualified Immunity
As a matter of law, defendants did not violate Gonzalez's constitutional rights. Accordingly, I need not determine whether Officers Cunningham, Huber and Pannuccio are shielded from liability under the doctrine of qualified immunity.
F. Municipal Liability
Under Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978), a city can only be held liable in instances where a municipal policy or custom causes a constitutional violation to occur. Because Gonzalez has failed to show that any of his constitutional rights were violated, all of his claims against the City must fail. See Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992); see also Anderson v. City of New York, No. 99 Civ. 418, 2000 WL 1010984, at *3 (E. S.D.N.Y. July 19, 2000) ("If there is no underlying constitutional violation by a municipal official, the municipality may not be held liable.").
IV. Conclusion
For the reasons set forth above, defendants' motion for summary judgment is granted. The Clerk of the Court is directed to close this case.