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United States District Court, S.D. New York
May 20, 2004.
GREGORY J. NONNENMANN, Plaintiff -against- THE CITY OF NEW YORK, MAYOR MICHAEL BLOOMBERG, POLICE COMMISSIONER RAYMOND KELLY, DEPUTY CHIEF EDWARD CANNON, CAPTAIN NATALE GALATIOTO, CAPTAIN JOHN McCLUSKEY, AND THE NEW YORK CITY POLICE DEPARTMENT, Defendants
"Pro se" plaintiff Gregory J. Nonnenmann, an attorney and retired
police lieutenant, brings this action against the City of New York, the
New York City Police Department, Mayor Michael Bloomberg, Police
Commissioner Raymond Kelly, Deputy Chief Edward Cannon, Captain Natale
Galatioto, and Captain John McCluskey, pursuant to (1)
42 U.S.C. § 1983 and the First Amendment, (2) the Sixth Amendment, (3)
the Fair Labor Standards Act, and (4) New York defamation laws
(Dkt. No. 1: Compl; Dkt. No. 14: Am. Compl; Dkt. Nos. 32-33, 39:
Discontinuances; Dkt. No. 36: Nonnenmann Aff. ¶¶ 3-4.) Presently
before this Court is defendants' summary judgment motion. (Dkt. Nos.
28-29.) For the reasons set forth below, defendants should be granted summary judgment on the § 1983 First
Amendment and Sixth Amendment claims, and denied on the Fair Labor
Standards Act claim and the state law defamation claim.
Nonnenmann was admitted to practice law in New York in 1983 (Dkt. No.
11: Am. Compl. ¶ 7; Dkt. No. 35: Nonnenmann 56.1 Stmt. ¶ 1; Dkt.
No. 28: City 56.1 Stmt. ¶ 3) and is representing himself in this
action. A New York City Police Officer since 1983, Nonnenmann was
promoted to Sergeant in 1989 and Lieutenant in 1998. (Am. Compl. ¶ 6;
City 56.1 Stmt. ¶ 1-2; Nonnenmann 56.1 Stmt. ¶ 1.) In April 2001,
Nonnenmann transferred from the 28th Precinct to the 110th Precinct and
was assigned to the 1st Platoon.*fn1 (City 56.1 Stmt. ¶¶ 8-9; Dkt.
No. 28: Molfetta Aff. Ex. F: Nonnenmann Dep. at 57-58)*fn2 After a few
days at the 110th Precinct, Nonnenmann was appointed Grand Larceny
Lieutenant, a position that permitted Nonnenmann to propose his own
schedule for approval. (City 56.1 Stmt. ¶ 10; Nonnenmann Dep. at 60.)
Defendant Captain Natale Galatioto became the 110th Precinct's
Commanding Officer in May 2001. (City 56.1 Stmt. ¶ 11.) After a few
weeks, Capt. Galatioto assigned Nonnenmann to the 1st Platoon for a brief
period and then appointed Nonnenmann as the 110th Precinct's Replacement
Lieutenant. (City 56.1 Stmt. ¶ 12; Nonnenmann Dep. at 63-64.) As
Replacement Lieutenant, Nonnenmann's shifts varied with the precinct's
needs, but he generally worked the 2d Platoon, which is the 8 a.m. to 4
p.m. shift, or the 3d Platoon, from 4 p.m. to midnight. (City 56.1 Stmt. ¶ 13; Nonnenmann Dep. at 63.) In January 2002, Capt.
Galatioto reassigned Nonnenmann to the 1st Platoon. (City 56.1 Stmt.
¶ 15; Nonnenmann 56.1 Stmt. ¶ 11.)
The February 3. 2002 Stop-and-Frisk
On February 3, 2002, around 1 a.m. Capt. Galatioto, Lieutenant James
Lombardi, Nonnenmann, Nonnenmann's driver Officer Robert Dirosse, and
others responded to a radio report that, at the intersection of 41st
Avenue and Junction Boulevard in Queens, a group of males were creating a
disturbance and one of the males may have a gun. (Am. Compl. ¶ 9;
City 56.1 Stmt. ¶¶ 16-17; Nonnenmann 56.1 Stmt. ¶ 15; Nonnenmann
Aff. ¶¶ 7, 194-96; Nonnenmann Dep. at 80-89; Ex. G: Galatioto Dep. at
29-31, 35.) Nonnenmann "was the first on the scene, [and] observed five
male Hispanics, less than a half a block away talking. There was no
apparent dispute, no complainants at the location, no broken bottles or
glass, no indication of any unlawful or criminal activity." (Nonnenmann
Aff. ¶¶ 8, 196.)
When Nonnenmann arrived at the scene, he remained in his patrol car and
observed Capt. Galatioto and Lt. Lombardi stop the group of five Hispanic
males. (City 56.1 Stmt. ¶ 17-18; Galatioto Dep. at 29-30.) According
to Nonnenmann, Capt. Galatioto and Lt. Lombardi arrived at the scene,
"exited their car and immediately stopped all the individuals."
(Nonnenmann Aff. ¶ 10.) Nonnenmann also contends that during the
frisk, Nonnenmann was "`[g]etting out of [his] car to go down to where
they were.'" (Nonnenmann 56.1 Stmt. ¶ 19; Nonnenmann Dep. at 83.)
Capt. Galatioto, Lt. Lombardi, and Officer Dirosse frisked the males.
(City 5 6.1 Stmt. ¶¶ 19-21; Nonnenmann Aff. ¶¶ 10, 194; Nonnenmann
Dep. at 83-84; Galatioto Dep. at 29-30.) At the conclusion of the
stop-and-frisk, the group of males were advised that they were free to
leave or stay in the area, and were not arrested or taken into custody.
(City 56.1 Stmt. ¶ 22.) Nonnenmann claims that at the time of the stop-and-frisk, he wrote in his NYPD
memo book: "no legal basis for the stop and frisk." (Am. Compl. ¶ 9;
Nonnenmann Aff. ¶ 11; Nonnenmann Dep. at 85, 88; City 56.1 Stmt.
¶ 24.)
According to Nonnenmann, Police Officer Jose Abreu observed the
stop-and-frisk while off-duty and on his way home. (City 56.1 Stmt. ¶
25; Nonnenmann 56.1 Stmt. ¶ 20; Nonnenmann Aff. ¶ 12; Ex. Y:
4/23/03 IAB Rpt.) At around 10:50 a.m that day, "Officer Abreu informed
[Nonnenmann] that he witnessed the stop and frisk, felt it was
unjustified and racially motivated. [Abreu] request[ed] that [Nonnenmann]
file a misconduct complaint against the defendant." (Nonnenmann Aff.
¶ 12; Nonnenmann 56.1 Stmt. ¶ 20.) At 11:00 a.m. on February 3,
2002, Nonnenmann called IAB to file a formal complaint about the
stop-and-frisk. (Am. Compl. ¶ 10; City 56.1 Stmt. ¶ 26;
Nonnenmann 56.1 Stmt. ¶ 21; Nonnenmann Dep. at 91-92.) Pursuant to
NYPD "Patrol Guide Procedure 207-21," Nonnenmann was "mandated to report
all `Allegations of Corruption and Serious Misconduct Against Members of
the Service'" and" [f]ailure to report can result in termination." (Am.
Compl. ¶ 8; Ex. X & Am. Compl. Ex. B: NYPD Patrol Guide 207-21;
City 56.1 Stmt. ¶ 27.)
On February 8, 2002, Nonnenmann attended a departmental interview at
the Queens Borough North Investigations Unit, which was the IAB office
that first handled his complaint. (Am. Compl. ¶ 14; City 56.1 Stmt.
¶¶ 28-29; Nonnenmann Aff. ¶¶ 17, 58.) Nonnenmann's request for an
adjournment because his wedding was the next day was denied. (Nonnenmann
56.1 Stmt. ¶ 33; Am. Compl. ¶ 14; Nonnenmann Aff. ¶ 17.) When
he arrived at the meeting, however, Capt. McNulty of IAB told Nonnenmann
that he "was now the subject of the hearing and was allowed an adjournment as a matter of right." (Nonnenmann 56.1 Stmt. ¶ 34;
Nonnenmann Aff. ¶ 18; Am. Compl. ¶ 14.)
The stop-and-frisk investigation was later referred to IAB office Group
1, which "investigates cases involved high level members of the NYPD and
cases that receive media attention." (City 56.1 Stmt. ¶ 35; Am.
Compl. ¶ 20; Nonnenmann 56.1 Stmt. ¶ 49.) Defendant Captain John
McCluskey, the Commanding Officer of IAB Group 1, led the investigation.
(City 56.1 Stmt. ¶ 36; Nonnenmann 56.1 Stmt. ¶ 49.)
In IAB's April 23, 2003 "Investigative Findings Case Closing/Final
Report," (1) Capt. Galatioto was "exonerated" of the allegation that the
February 3, 2002 stop-and-frisk was racially motivated; (2) Nonnenmann's
allegation that Chief Cannon made slanderous comments against him were
deemed unsubstantiated; and (3) Nonnenmann's allegations that Capt.
Galatioto retaliated against him were deemed unsubstantiated. (City 56.1
Stmt. ¶¶ 70-73; Ex. Y: 4/23/03 IAB Rpt.)
Nonnenmann's Allegations Against Defendant Captain
On February 15, 2002, Nonnenmann filed a complaint with the Police
Department Office of Equal Employment Opportunity ("OEEO"). (Am. Compl.
¶ 22; City 56.1 Stmt. ¶ 37; Ex. C: 2/15/02 Nonnenmann NYPD OEEO
Compl.; Nonnenmann 56.1 Stmt. ¶ 50; Nonnenmann Aff. ¶ 73)
Nonnenmann alleged that he "is being discriminated against based on race
and national origin" and "is being retaliated against for filing or
assisting in an investigation of a complaint." (Ex. C: 2/15/02 Nonnenmann
NYPD OEEO Compl.) The Police Department referred Nonnenmann's OEEO
complaint to IAB for investigation (Am. Compl. ¶ 25; City 56.1 Stmt.
¶ 45), and combined it with IAB's investigation of the stop-and-frisk
(City 56.1 Stmt. ¶ 37; Ex. L: 3/1/02 NYPD EEO Letter to Nonnenmann). On February 19, 2002 (and again on March 26, 2002), Nonnenmann filed
a notice of claim alleging retaliation, violations of
42 U.S.C. § 1983 and 2000, the Fourth and Fourteenth Amendments,
Title VII, libel, slander, and discriminatory retaliation in
violation of New York State and City Civil Rights laws. (Nonnenmann
56.1 Stmt. ¶ 47; Ex. R. Nonnenmann Notices of Claim; Nonnenmann
56.1 Stmt. Ex. O: Nonnenmann Notices of Claim.) On February 24 and
25, 2002, Nonnenmann and his union filed unfair labor practices
grievances with the NYPD Office of Labor Relations alleging that
Capt. Galatioto retaliated against him and "violated the collective
bargaining agreement by conducting a disciplinary hearing without
allowing [Nonnenmann] the benefit of legal or union counsel." (Am.
Compl. ¶ 23-24; City 56.1 Stmt. ¶¶ 43-44; Ex. J: Nonnenmann
2/24/02 Unfair Labor Practice Compl.; Nonnenmann Aff. ¶ 73)
Like Nonnenmann's OEEO complaint, his unfair labor practices
grievance was combined with IAB's stop-and-frisk investigation. (Am.
Compl. ¶ 43; Nonnenmann Aff. ¶ 73; City 56.1 Stmt. ¶¶ 43-44;
Ex. Q: 8/20/02 Office of Labor Relations Letter.)
On March 28, 2002, Nonnenmann filed a complaint against defendants with
the Civilian Complaint Review Board. (Am. Compl. ¶ 27.) On June 1,
2002, Nonnenmann filed a complaint against Capt. Galatioto with the
Internal Affairs Bureau. (Am. Compl. ¶ 31.) On July 24, 2002,
Nonnenmann filed a complaint with the Internal Affairs Bureau alleging
continued retaliation by Captain McCafferty. (Am. Compl. ¶ 41.) On
August 5, 2002, Nonnenmann sent a complaint to Police Commissioner
Raymond Kelly. (Am. Compl. ¶ 42.)
After Capt. Galatioto allegedly denied Nonnenmann one hour and twenty
minutes of overtime on May 3, 2002, Nonnenmann filed a grievance against
Capt. Galatioto on May 8, 2002. (Am. Compl. ¶ 29; City 56.1 Stmt.
¶ 47; Nonnenmann 56.1 Stmt. ¶ 61; Nonnenmann Aff. ¶ 76.) Nonnenmann admits that he was eventually paid for that overtime.
(Nonnenmann Aff. ¶ 78; Nonnenmann Dep. at 113-14; Nonnenmann Aff. Ex.
G: Nonnenmann 5/30/02 Approved Overtime Slip.)
Nonnenmann's Transfer From the 1st to 2d Platoon
On May 31, 2002, Nonnenmann learned that as of June 7, 2002, he
would be transferred from the 1st Platoon to the 2d Platoon. (Am. Compl.
¶ 30; City 56.1 Stmt. ¶ 48; Nonnenmann 56.1 Stmt. ¶ 62;
Nonnenmann Aff. ¶ 79.) The 1st Platoon is a shift from midnight to 8
a.m., while the 2d Platoon is from 8 a.m. to 4 p.m. (See also
page 2 & fn.1 above.) Nonnenmann had been assigned to the 1st Platoon
since January 2002 (City 56.1 Stmt. ¶¶ 15, 48; see also page
3 above.) According to Nonnenmann, the shift change "resulted in nearly a
$600.00 a month reduction in income and a reduction to [his] life time
pension benefits of in excess of $45,000.00" and that "[a]n additional
loss of overtime can cause this loss to double." (Am. Compl. ¶ 30.)
Specifically, the" 1st platoon commander receives $6,740.00 in night
shift differential which is fully pensionable, [while] a 2nd platoon
commander does not receive any night shift differential." (Nonnenmann
Aff. ¶ 80; Nonnenmann Aff. Ex. H: LBA 5/23/2002 Newsletter.)
Nonnenmann claims that Capt. Galatioto removed him from the 1st Platoon
"deliberately to reduce [Nonnenmann's] income, upset his family
schedule," "reduce the available time by which [Nonnenmann] could
practice law," and because Galatioto "was aware [Nonnenmann] was
approaching retirement eligibility and by reducing plaintiff's pay his
retirement benefits would be substantially reduced." (Nonnenmann Aff.
¶ 79, 229, 234.) Nonnenmann further alleges that the platoon change
"was a blatant violation of law and department guidelines" because
"Police Department policy, as part of the consent decree with the Federal
Government, does not allow transfers or changes to work assignments or
hours of a `protected party.'" (Am. Compl. ¶ 30.)
Also on May 31, 2002, Capt. Galatioto transferred three other 110th
Precinct Lieutenants who were Platoon Leaders. (City 56.1 Stmt. ¶
49.)*fn3 Capt. Galatioto testified that he adjusted all of the Platoon
Leader Lieutenants by one shift due to the poor performance of the 110th
Precinct and complacency among its officers. (City 56.1 Stmt. ¶ 50;
Nonnenmann Aff. ¶ 216; Galatioto Dep. at 76-77.) Capt. Galatioto
"felt the lieutenants weren't doing enough to move the place along to get
the cops doing what needed to be done" and that "there was a little too
much comfort . . . between the bosses and officers." (Galatioto Dep.
at 77.) Specifically, Capt. Galatioto was very impressed with Lieutenant
Cahill's qualifications, and wanted him on the 3d Platoon because Lt.
Cahill "had an extensive background out on the street" and "as a relief
lieutenant [Cahill]. . . seemed to be making some head-way with the
officers getting to work." (Galatioto Dep. at 76, 110.) The 2d Platoon
had a vacancy created by the then-Platoon Leader's promotion to Captain.
(Galatioto Dep. at 76.) Capt. Galatioto found Lieutenant Pristera "a
little weak" on the 3d Platoon (Galatioto Dep. at 76), and felt that
Nonnenmann, as a lawyer, was "probably better suited" on the 2d Platoon
because it "is certainly a more administrative tour." (Galatioto Dep. at
97; see also City 56.1 Stmt. ¶ 51.)*fn4 As a result, Capt.
Galatioto replaced Nonnenmann with Lt. Pristera on the 1st Platoon, moved Nonnenmann to the vacant position on the 2d
Platoon, and replaced Lt. Pristera with Lt. Cahill on the 3d Platoon.
(Galatioto Dep. at 76-77.) Capt. Galatioto testified that crime
statistics showed "a real dramatic decrease" after the Platoon Leader
shifts. (City 56.1 Stmt. ¶ 53; Galatioto Dep. at 97, 110.)
On June 1, 2002, Nonnenmann filed an IAB complaint against Capt.
Galatioto because of his platoon transfer. (Am. Compl. ¶ 31;
Nonnenmann 56.1 Stmt. ¶ 67; Nonnenmann Aff. ¶ 82.) Nonnenmann
alleges that Sergeant LaPorte of IAB called his home on June 2, 2002,
asked him several questions, and ordered him "to remain at [his]
residence . . . pending instructions from an IAB Captain." (Am. Compl.
¶ 32; Nonnenmann Aff. ¶ 85.) Nonnenmann alleges that he submitted
for six hours of overtime for this period and initially was paid, but
that his overtime was subsequently "docked" pursuant to orders from Capt.
Galatioto and a Captain McCaffrey. (Am. Compl. ¶ 32; Nonnenmann 56.1
Stmt. ¶ 68; Nonnenmann Aff. ¶ 85; Nonnenmann Aff. Ex. K:
Nonnenmann 6/2/02 Overtime Slip & 7/3/02 Denial.) Nonnenmann also
claims that he had the right to seek 53 hours of overtime because, as the
IAB Sergeant directed, Nonnenmann stayed home for 53 hours until his next
tour of duty. (Am. Compl. ¶ 32; Nonnenmann 56.1 Stmt. ¶ 68;
Nonnenmann Aff. ¶ 85.)
According to Nonnenmann, Capt. Galatioto called Nonnenmann at home on
June 10, 2002 "to harass [Nonnenmann] about [Nonnenmann's] work and tour
changes." (Am. Compl. ¶ 33; Nonnenmann 56.1 Stmt. ¶ 69; Nonnenmann Aff. ¶ 86.)
Nonnenmann claims he "is entitled to overtime pay for the invasion of
[Galatioto] into [Nonnenmann's] personal time." (Nonnenmann Aff. ¶
Nonnenmann filed another unfair labor grievance against Capt. Galatioto
after he did not allow Nonnenmann to use department time to attend
medical testing on June 11, 2002 for a line-of-duty injury. (Am. Compl.
¶¶ 34, 36; City 56.1 Stmt. ¶ 54; Nonnenmann Aff. ¶¶ 87, 89.) As
Nonnenmann admits, however, Capt. Galatioto permitted him to keep the
appointment and leave work on his personal time. (City 56.1 Stmt. ¶
55; Nonnenmann Aff. ¶¶ 87, 89; Nonnenmann Dep. at 105-06; Galatioto
Dep. at 145.) According to the IAB Findings & Case Closing Report,
Nonnenmann was later granted the lost time. (Ex. Y: 4/23/03 IAB Rpt.)
Nonnenmann filed a complaint with the EEOC on June 3, 2002, alleging
retaliation since Officer Abreu, a Hispanic, had asked him to file a
complaint of racial profiling against Capt. Galatioto for the stop and
frisk. (Am. Compl. ¶ 38; City 56.1 Stmt. ¶ 56; Ex. D: 6/3/02 EEOC
Compl.) Nonnenmann alleged in his EEOC complaint that on February 4,
2002, the day after the stop-and-frisk, Capt. Galatioto "ordered
[Nonnenmann] into his office approximately 10 times . . . for verbal
abuse and intimidation." (Ex. D: Nonnenmann 6/3/02 EEOC Compl. ¶ 5;
Nonnenmann 56.1 Stmt. ¶ 31.) Nonnenmann claimed that at this meeting,
Capt. Galatioto "blamed [him] for [Galatioto's] failure to properly
prepare the required documentation to justify his search" of the five
males. (Ex. D: Nonnenmann 6/3/02 EEOC Compl. ¶ 5.) According to
Nonnenmann's EEOC complaint, union members were present for several hours
and "were forced to intervene" on behalf of Nonnenmann and Dirosse.
(Id.) Nonnenmann further alleged that he was retaliated against when: (1) he
was ordered to attend a department hearing at 11:00 a.m. on February 8,
2002, the day before his wedding, and was refused an adjournment (City
56.1 Stmt. ¶ 57; Nonnenmann 56.1 Stmt. ¶¶ 32, 33; Nonnenmann Aff.
¶ 17; Ex. D: Nonnenmann 6/3/02 EEOC Compl. ¶ 6; see
also pages 4-5 above); (2) Nonnenmann's locker contents were
disturbed between February 12 and February 14, 2002 (although nothing was
taken) (City 56.1 Stmt. ¶ 57; Nonnenmann 56.1 Stmt. ¶ 46;
Nonnenmann Aff. ¶ 44; Ex. D: Nonnenmann 6/3/02 EEOC Compl. ¶ 9);
(3) Nonnenmann was allegedly the subject of defamatory comments by Chief
Cannon during remarks to the 3rd Platoon on February 13, 2002 (City 56.1
Stmt. ¶ 57; Ex. C: Nonnenmann 6/3/02 EEOC Compl. ¶ 10); and (4)
on February 18, 2002, Capt. Galatioto called Nonnenmann into his office
for "an interim evaluation meeting," which Nonnenmann believes was
intended to"discipline and harass" Nonnenmann in the absence of a union
delegate (City 56.1 Stmt. ¶ 57; Nonnenmann 56.1 Stmt. ¶ 51;
Nonnenmann Aff. ¶¶ 45-56, 184, 185; Ex. D: Nonnenmann 6/3/02 EEOC
Compl. ¶ 11).*fn5 On October 5, 2002, Nonnenmann received an EEOC
right to sue letter dated September 30, 2002. (Am. Compl. ¶ 44; City
56.1 Stmt. ¶ 63; Nonnenmann 56.1 Stmt. ¶ 76.) The Compstat Meeting
On July 12, 2002, Capt. Galatioto ordered Nonnenmann to attend a
Headquarters Compstat meeting. (Am. Compl. ¶ 40; City 56.1 Stmt.
¶ 59; Nonnenmann 56.1 Stmt. ¶ 73; Nonnenmann Aff. ¶ 94;
Nonnenmann Dep. at 123-24.) Although Nonnenmann alleges that Capt.
Galatioto "stated he was going to put [Nonnenmann] on the podium and see
that [Nonnenmann] was publicly embarrassed," Capt. Galatioto never called
Nonnenmann to the podium. (Am. Compl. ¶ 40; see also
Nonnenmann Aff. ¶ 94; Nonnenmann Dep. at 124-25.) Nonnenmann claims
that he nevertheless was "publicly embarrassed" by "watching the
higher-ups on the Police Department to commit [a]n act of gender
discrimination against Chief Kunk[le]." (Nonnenmann Dep. at 125; Am.
Compl. ¶ 40.) Nonnenmann concedes that no acts of discrimination or
retaliation against him were committed at the July 12, 2002 Compstat
meeting. (Nonnenmann Dep. at 125.)
On July 22, 2002, Nonnenmann filed an unfair labor practice grievance,
alleging retaliation including (1) his platoon transfer; (2) denial of
overtime for the time IAB ordered him to remain home following his June
1, 2002 IAB complaint against Capt. Galatioto, and (3) Capt. Galatioto's
allegedly harassing June 10, 2002 phone call to Nonnenmann's home. (Ex.
O: 7/22/02 Grievance Form; City 56.1 Stmt. ¶ 58.) On July 24, 2002,
Nonnenmann filed an IAB complaint alleging "continued retaliation during
an ongoing IAB investigation." (Am. Compl. ¶ 41; City 56.1 Stmt.
¶ 60.) Like several of Nonnenmann's other complaints, the July 24,
2002 IAB complaint was merged with lAB's stop-and-frisk investigation.
(City 56.1 Stmt. ¶ 60.)
On August 29, 2002, Capt. Galatioto transferred Nonnenmann from the 2d
Platoon (8 a.m. to 4 p.m.) to the 3d Platoon (4 p.m. to midnight) and
appointed Nonnenmann the "Special Operations Burglary Lieutenant." (City 56.1 Stmt. ¶ 62.)
Nonnenmann's account is slightly different:
On or about August 29, 2002, Capt[ain] Shandley was
chosen to command a PBQN [Patrol Borough Queens
North] initiative, with resources being diverted
from other commands to the 110th Pct. Inspector
D'Amico, the adjutant of PBQN, was in charge of
the overall detail. Capt. Shandley asked
[Nonnenmann] if he would transfer to his
initiative. [D'Amico] stated it would separate
[Nonnenmann] from Galatioto. [Nonnenmann] accepted
the new assignment; which lasted until Insp.
D'Amic[o] was transferred from PBQN, at which time
[Nonnenmann] was once again working directly for
defendant Galatioto, still under the title as the
Special Operations Burglary Lieutenant.
Nonnenmann alleges that on or about January 30, 2003, Capt. Galatioto
"ordered that [Nonnenmann] was to receive no further overtime
assignments." (Am. Compl. ¶ 51(g).) Nonnenmann filed an IAB complaint
against Capt. Galatioto as a result. (Am. Compl. ¶ 51(g); Nonnenmann
56.1 Stmt. ¶ 77.)
In February 2003, Capt. Galatioto ordered the 110th Precinct's
Anti-Crime team to work overtime on Mondays because the burglary rate was
steadily rising and Monday was the team's only day off. (City 56.1 Stmt.
¶ 64.) As a result of the Anti-Crime team's Monday assignment, Capt.
Galatioto cancelled two days of Nonnenmann's scheduled overtime on
Mondays in February 2003. (City 56.1 Stmt. ¶ 64; Nonnenmann 56.1
Stmt. ¶ 78.) Nonnenmann filed an IAB complaint against Capt.
Galatioto regarding the cancelled overtime. (Nonnenmann 56.1 Stmt. ¶
Nonnenmann further alleges that on February 5, 2003, Capt. Galatioto
"unlawfully committed an act of physical contact against" him, and on
February 25, 2003, "physically removed a clip board from [Nonnenmann's]
hands and again accused [Nonnenmann] of being in an improper uniform."
(Am. Compl. ¶ 51(k); Nonnenmann 56.1 Stmt. ¶ 82; Nonnenmann Aff.
¶¶ 143, 240.) Nonnenmann's Retirement
Nonnenmann filed for retirement on March 12, 2003, allegedly "[t]o
protect his pension and because of the unrelenting harassment," effective
July 30, 2003. (City 56.1 Stmt. ¶ 75; Nonnenmann Aff. ¶ 144.)
Nonnenmann claims that he "was forced to retire before he intended," and
"received no overtime from April through July 2003" as a result.
(Nonnenmann Aff. ¶¶ 145, 150.)*fn6 Nonnenmann estimates that he lost
at least $362,553.75, based on 301 hours and 33 minutes of cash overtime
he claims he lost through early retirement, multiplied by 50% and his
life expectancy of 37 years. (Nonnenmann Aff. ¶¶ 151, 153.)
Nonnenmann's Allegations Against Defendant Chief Cannon
On February 12, 2002, The New York Daily News published an
article about the February 3, 2002 stop-and-frisk. (Am. Compl. ¶ 19;
Nonnenmann 56.1 Stmt. Ex. G: John Marzulli, 3 Cops Accuse Chief of
Misconduct vs. Latinos, N.Y. Daily News, Feb. 12, 2002; Nonnenmann
56.1 Stmt. ¶ 36; Nonnenmann Aff. ¶ 20.) The article read:
A hard-charging NYPD precinct commander is under
investigation for allegedly conducting an illegal
stop-and-frisk procedure last week on five
Hispanic men on a Queens street, the Daily News
has learned.
Capt. Natale Galatioto, commander of the 110th
Precinct in Queens, was accused of misconduct by
three of his own cops who were present. One
of the accusers, a lieutenant, is also a lawyer,
sources told The News.
"I don't think there's any merit to [the
allegation]," Galatioto said yesterday when
reached at the stationhouse. "I think I'm a fair
and balanced supervisor." But some cops at the command, which covers
Corona, Jackson Heights and Elmhurst, portrayed
Galatioto as a hard-driving boss whose demand for
more arrests and summonses could lead to civil
rights abuses.
The cops have complained about him to the Latino
Officers Association.
"The people whose rights are being violated are
primarily of Mexican and South American descent, a
community that lacks representation," said the
association's president, Anthony Miranda. "These
officers observed something wrong and took a
NYPD officials did not immediately respond to a
request for comment, but the allegation against a
high-ranking officer comes at a sensitive time for
the NYPD, as Mayor Bloomberg and Police
Commissioner Raymond Kelly carry out a highly
publicized crackdown on quality-of-life offenses.
The Feb. 3 stop-and-frisk was prompted by two
911 calls involving quality-of-life complaints,
said police sources close to the probe.
About 1 a.m., one caller reported a group of
about 15 Hispanic men breaking bottles on Junction
Blvd. Then a second caller reported a noisy
Hispanic man who may have been armed with a gun in
the past. The callers gave no further description.
Sources said Lt. Greg Nonnenmann and his
driver, Officer Robert Dirosse, saw five Hispanic
men about two blocks from the location given by
the callers. They did not notice any broken
bottles and the men were just talking. Nonnenmann.
who is a 19-year NYPD veteran and also a
practicing lawyer, told his driver there was no
reason to frisk the men.
Then Galatioto and his driver, Lt. James
Lombardi, arrived and proceeded to search the men.
Galatioto instructed Dirosse to prepare
stop-and-frisk reports, the sources said.
Stop-and-frisk reports, updated after the fatal
shooting by cops of unarmed immigrant Amadou
Diallo, contain a checklist for specifying the
reason for the police action. Dirosse, the sources
said, wrote there was no legal basis for the
An off-duty cop, Jose Abreu, witnessed the
incident and told Nonnenmann he thought the
incident was racially motivated. Nonnenmann
reported that allegation to the Internal Affairs
On February 13, 2002, defendant Deputy Chief Edward Cannon visited the
110th Precinct and addressed the 3d Platoon roll call, comprised of
twenty to twenty-five uniformed officers. (Am. Compl. ¶ 14; City 56.1
Stmt. ¶ 31; Nonnenmann 56.1 Stmt. ¶ 37; Nonnenmann Aff. ¶ 21;
Ex. H: Cannon Dep. at 17-22, 30.) Nonnenmann alleges that Chief Cannon
"in his public remarks defamed [Nonnenmann] and held him to public
embarrassment and ridicule in both his professional occupations as an
attorney and as a police lieutenant. His comments were knowingly false at
the time they were made and were made with a reckless disregard for the
truth." (Nonnenmann Aff. ¶ 21; see also Nonnenmann 56.1
Stmt. ¶ 39.)
At his deposition, Chief Cannon did not recall exactly what he said to
the Platoon, but explained that he "made statements in support of [Capt.
Galatioto], and . . . made statements regarding what [Chief Cannon]
believed to be inaccurate statements in the newspaper article that had
been published that day." (Cannon Dep. at 17-18; see also
Nonnenmann Aff. ¶ 215; Nonnenmann 56.1 Stmt. ¶¶ 42-43.) According
to Chief Cannon, his "purpose was to show support for the captain and to
dispute some of the inaccuracies within the article." (Cannon Dep. at 30;
Nonnenmann 56.1 Stmt. ¶¶ 42-43.) Chief Cannon recalled that during his
address he said "something to the effect of I'd rather ride in a radio
car with an officer like the captain out on patrol after midnight so he
doesn't have to be backing up police officers as they respond to a
ra[]dio run specifically one involving a gun and getting out and taking
police action. I'd rather ride next to an officer like that than some
malcontent who hates his job . . ." (Cannon Dep. at 52; see
also Nonnenmann Aff. ¶ 215.) Chief Cannon testified that none of his comments were specifically about
Nonnenmann. (Cannon Dep. at 50-52.)
It is undisputed that Nonnenmann was not present during Chief Cannon's
remarks and that Chief Cannon never mentioned Nonnenmann by name. (City
56.1 Stmt. ¶ 32; Nonnenmann 56.1 Stmt. ¶ 42; Nonnenmann Dep. at
128-29; Cannon Dep. at 17-22.) Nonnenmann testified that "several police
officers" told him about Chief Cannon's comment, but he " [did]n't recall
specifically" if anyone who was at the meeting said that the comment was
about Nonnenmann. (Nonnenmann Dep. at 128-29; see also
Nonnenmann Aff. ¶ 36.) Nonnenmann believes that Chief Cannon was
referring to him because Chief Cannon's address
was in response to the newspaper articles. He was
there to defend Galatioto to say that Galatioto
was a captain yesterday, is a captain today, and
will be a captain tomorrow, and that he'd rather
be sitting in a squad car next to him than that
other person. And anyone with common sense would
know how many people were pensionable at that
time, who were appropriately at a position where
they could start planning retirement. Who were the
people that were at that incident, who else would
he refer to [as] the malcontent waiting to collect
a pension? The rookie that was waiting, I think
On March 26, 2002, Nonnenmann amended his February 19, 2002 Notice of
Claim to add a defamation claim against Chief Cannon. (Nonnenmann 56.1
Stmt. ¶ 47; Ex. R: 3/26/02 Notice of Claim.) Nonnenmann alleged that
on or about February 13, 2002, Chief Cannon "did make public statements,
communicated to an audience, to defame and hold open to ridicule [Nonnenmann]. Said statements were also made in an attempt to
impede and inhibit and intimidate witnesses from coming forward in a
department employment discrimination case." (Ex. R: 3/26/02 Notice of
Claim.) Nonnenmann paraphrased Chief Cannon's comments as stating that
Chief Cannon would" [r]ather be sitting next to the Captain than some
malcontent who just wants to collect his check and his pension and
doesn't want to be on this job" and that the "Captain could have saved 2
cops from sitting on their asses from being blown away." (Ex. R: 3/26/02
Notice of Claim.)
Nonnenmann's Allegations Against Defendant Captain
In early February 2002, Queens Borough North Inspections Unit
transferred the investigation to IAB Group 1, whose commanding officer,
defendant Captain John McCluskey, led the investigation. (City 56.1 Stmt.
¶¶ 35-36.)
On February 22, 2002, Nonnenmann was ordered to attend another IAB
interview, at which time defendant Captain McCluskey informed him that
Nonnenmann was the subject of a misconduct allegation for failing to
promptly notify IAB of the misconduct allegation against Capt.
Galatioto.*fn7 (Am. Compl. ¶ 20; City 56.1 Stmt. ¶ 39;
Nonnenmann 56.1 Stmt. ¶¶ 53-54, 58; Nonnenmann Aff. ¶¶ 58, 61, 95.)
Nonnenmann characterizes his failure to report the allegation to IAB as
"a factual and legal impossibility" because Patrol Guide 270-21 requires
written notification to the IAB Chief within 24 hours (Am. Compl. ¶
20), while Nonnenmann contacted IAB approximately ten hours after the
stop-and-frisk (Am. Compl. ¶ 10; City 56.1 Stmt. ¶ 26; Nonnenmann
Aff. ¶¶ 65, 96.) According to the City, however, Nonnenmann "became a
subject of the IAB investigation when IAB determined that despite being a
witness to the stop and frisk, [Nonnenmann] did not file the complaint
with IAB until Abreu asked him to file the complaint on [Abreu's]
behalf." (City 56.1 Stmt. ¶ 40; see Nonnenmann Aff. ¶
95.) Nonnenmann claims that "defendants deliberately conspired to keep a
bogus allegation open against [Nonnenmann] as an act of retaliation to
harass, to place him in fear of losing his pension and benefits, to
attempt to get conflicting statements in the numerous interrogations
which would provide a reason to terminate his employment and to charge
him with perjury and/or to force [Nonnemann's] retirement." (Nonnenmann
Aff. ¶ 97.)
Also in February 2002, Nonnenmann contacted Amato Salas, one of the
subjects of the February 3, 2002 stop-and-frisk, to see if Salas would
testify on Nonnenmann's behalf in civil litigation and possible NYPD
trials. (City 56.1 Stmt. ¶ 41; Ex. I: McCluskey Dep. at 41-47;
Nonnenmann Dep. at 109, 112; Nonnenmann Aff. ¶¶ 67-71.) After
Nonnenmann's meeting with Salas, Capt. McCluskey ordered Nonnenmann not
to contact the subjects of the stop-and-frisk during the IAB
investigation. (City 56.1 Stmt. ¶ 42; Nonnenmann Aff. ¶ 68;
Nonnenmann Dep. at 109, 112; McCluskey Dep. at 46-47, 63-65.) On February
25, 2002, Nonnenmann filed an unfair labor practices grievance alleging
retaliation by Capt. McCluskey. (Am. Compl. ¶ 24; City 56.1 Stmt.
¶ 44.) Like Nonnenmann's unfair labor practice grievance against
Capt. Galatioto, his grievance against Capt. McCluskey was combined with
the IAB's stop-and-frisk investigation. (Am. Compl. ¶ 43; City 56.1
Stmt. ¶¶ 44, 61; Ex. Q: 8/20/02 Labor Relations Letter.)
Nonnenmann attended another IAB departmental interview on April 17,
2002 regarding the stop-and-frisk investigation, pursuantto Capt.
McCluskeys orders. (Am. Compl. ¶ 28; City Stmt. ¶ 46; Nonnenmann
Aff. ¶¶ 58, 75.) Nonnenmann characterized the meeting as part of "continuing attempts to use authority as a means of harassment
against" Nonnenmann. (Am. Compl. ¶ 28; Nonnenmann Aff. ¶¶ 58, 75.)
Nonnenmann's Present Federal Lawsuit
On or about December 23, 2002, Nonnenmann brought this lawsuit,
alleging seven causes of action, including violations of Title VII (Dkt.
No. 1: Compl. ¶¶ 52-55), Equal Protection under the Fourteenth
Amendment (Compl. ¶ 56-57), the First Amendment (Compl. ¶¶ 58-59),
and the Sixth Amendment (Compl. ¶¶ 60-61), as well as defamation
(Compl. ¶¶ 62-65) and a punitive damages claim (Compl. ¶¶ 66-67).
Nonnenmann filed an amended complaint on May 21, 2003 to add an eighth
cause of action: violation of the Fair Labor Standards Act, Collective
Bargaining Agreement, and statutory and common law contract rights. (Dkt.
No. 14: Am. Compl. ¶¶ 68-69; City 56.1 Stmt. ¶ 74.)
At a conference before me on October 15, 2003, Nonnenmann voluntarily
dismissed with prejudice his claims against the "John Doe" defendants.
(10/15/03 Order; 10/15/03 Hearing Transcript at 21.) By stipulation and
order on January 8, 2003, Nonnenmann voluntarily dismissed with prejudice
his Fourteenth Amendment Equal Protection Claim (the third cause of
action). (Dkt. No. 39: 1/8/03 Stip. & Order.) On or about October 27,
2003, Nonnenmann voluntarily dismissed with prejudice his Title VII
claims (the first and second causes of action). (Dkt. Nos. 32-33:
10/27/03 Partial Discontinuance; Dkt. No. 36: Nonnenmann Aff. ¶ 4;
Ex. Z: 10/27/03 Partial Discontinuance.)
Presently before this Court is defendant's summary judgment motion on
Nonnenmann's remaining claims, including (1) violations of
42 U.S.C. § 1983 and the First Amendment; (2) violations of the Sixth
Amendment; (3) violations of the Fair Labor Standards Act; and (4) defamation. (See generally Dkt. No. 28: City SJ
Notice of Motion, City 56.1 Stmt., City 56.2 Stmt., Molfetta Aff.; Dkt.
29: City Br.; Dkt. 38: City Reply Br.)
Rule 56(c) of the Federal Rules of Civil Procedure provides that
summary judgment "shall be rendered forthwith 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); see also, e.g., Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub.
Co., 949 F.2d 576, 580 (2d Cir. 1991). The burden of showing that no genuine factual dispute exists rests on
the party seeking summary judgment here, defendants. See,
e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp.,
43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential
Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant
may discharge this burden by demonstrating to the Court that there is an
absence of evidence to support the non-moving party's case on an issue
on which the non-movant has the burden of proof. See, e.g., Celotex
Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
To defeat a summary judgment motion, the non-moving party must do "more
than simply show that there is some metaphysical doubt as to material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving
party must "set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g.,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587,
106 S.Ct. at 1356.
In evaluating the record to determine whether there is a genuine issue
as to any material fact, "[t]he evidence of the non-mo vant is to be
believed, and all justifiable inferences are to be drawn in his favor."
Anderson v. Liberty Lobby. Inc., 477 U.S. at 255, 106 S.Ct.
at 2513; see also, e.g., Chambers v. TRM Copy Ctrs. Corp., 43
F.3d at 36; Gallo v. Prudential Residential Servs., Ltd.
P'ship, 22 F.3d at 1223. The Court draws all inferences in favor of
the nonmoving party here, Nonnenmann only after
determining that such inferences are reasonable, considering all the
evidence presented. See, e.g., Apex Oil Co. v. DiMauro,
822 F.2d 246, 252 (2d Cir.), cert. denied. 484 U.S. 977,
108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is
sought, there is any evidence in the record from any source from which
a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is
improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.
In considering a motion for summary judgment, the Court is not to
resolve contested issues of fact, but rather is to determine whether
there exists any disputed issue of material fact. See, e.g.,
Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58
(2d Cir. 1987); Knight v. United States Fire Ins. Co.,
804 F.2d 9.11 (2d Cir. 1986). cert. denied, 480 U.S. 932.107
S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive
law determines which facts are critical and which facts are
irrelevant. See, e.g., Anderson v. Liberty Lobby. Inc., 477 U.S. at 248,
106 S.Ct. at 2510. While "disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment[,] [f]actual disputes that are
irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at
2510 (citations omitted); see also, e.g., Knight v. United States Fire Ins.
Co., 804 F.2d at 11-12.
"The Court recognizes that it must `extend extra consideration' to pro
se plaintiffs" and that "pro se parties are to be given special latitude
on summary judgment motions."*fn9 Salahuddin v. Coughlin,
999 F. Supp. at 535 (citations & internal quotations omitted); see,
e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro
se party's pleadings should be read liberally and interpreted "`to raise
the strongest arguments that they suggest'").*fn10 Moreover, the pro se
party must be given express notice of the consequences of failing to respond
appropriately to a motion for summary judgment. See, e.g., Irby
v. New York City Transit Auth., 262 F.3d 412, 413-14 (2d Cir.
2001) ("[W]e remind the district courts of this circuit, as well as
summary judgment movants, of the necessity that pro se litigants have
actual notice, provided in an accessible manner, of the consequences of
the pro se litigant's failure to comply with the requirements of Rule 56.
. . .[E]ither the district court or the moving party is to supply the
pro se litigant with notice of the requirements of Rule 56. . . . In
the absence of such notice or a clear understanding by the pro se
litigant of the consequences of failing to comply with Rule 56, vacatur
of the summary judgment is virtually automatic."); McPherson v.
Coombe, 174 F.3d at 280-81 ("`[t]he failure of a district court
to apprise pro se litigants of the consequences of failing to respond to
a motion for summary judgment is ordinarily grounds for reversal.'")
(citations omitted).*fn11 Defendants here served the appropriate notices
on Nonnenmann. (Dkt. No. 28: City SJ Notice of Motion & City 56.2
Stmt.: Notice to Pro Se Litigant Opposing SJ Motion.)
"Nevertheless, proceeding pro se does not otherwise relieve a litigant
from the usual requirements of summary judgment, and a pro se party's
`bald assertion,' unsupported by evidence, is not sufficient to overcome
a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981,
1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases); see
also, e.g., Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *9 (S.D.N.Y. Aug
15, 2002) (Peck, M.J.); Smith v. Planas, 975 F. Supp. 303, 305
n.2 (S.D.N.Y. 1997).
SECTION 1983-FIRST AMENDMENT CLAIM*fn12
Nonnenmann claims that defendants violated 42 U.S.C. § 1983 by
retaliating against him in violation of his First Amendment Rights. (Dkt.
No. 14: Am. Compl. ¶ 59.) Specifically, Nonnenmann alleges that "from
on or about February 4, 2002 until the date hereof he has been the
subject of ongoing retaliatory discrimination for informing his superiors
of a racial discrimination complaint that was made by former Police
Officer Jose Abreu against Capt. Galatioto." (Am. Compl. ¶ 8.) A. Legal Principles Regarding Public Employees*
First Amendment Rights
It is well-settled that "[p]ublic employees do not surrender their
First Amendment rights to comment on matters of public interest by virtue
of their acceptance of government employment." Cobb v. Pozzi,
363 F.3d 89, 101 (2d Cir. 2004) (citing Pickering v. Board of
Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734 (1968)).*fn13 As
employers, however, states and municipalities possess "`greater leeway
to control employees' speech that threatens to undermine its ability to
perform its legitimate functions.'" Cobb v. Pozzi, 363 F.3d at
101 (quoting Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir.),
cert. denied, 528 U.S. 823, 120 S.Ct. 70 (1999)); accord,
e.g., Barry v. New York City Police Dep't, 2004 WL 758299 at *5.
"Courts determine the extent to which the government may permissibly
regulate the speech of its employees by balancing the interest of the
employee, `as a citizen, in commenting upon matters of public concern and
the interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.'" Cobb
v. Pozzi, 363 F.3d at 101-02 (quoting Pickering v. Board of
Educ., 391 U.S. at 568, 88 S.Ct. at 1734).*fn14
"Speech by a public employee is on a matter of public concern if it
relates `to any matter of political, social, or other concern to the
community.'" Johnson v. Ganim, 342 F.3d at 112 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684,
1690 (1983)).*fn15 Thus, "[t]he first part of the inquiry, commonly
referred to as the public concern test, serves a gatekeeping function for
employee speech claims in federal court. The First Amendment protects an
employee only when he is speaking `as a citizen upon matters of public
concern' as opposed to when he speaks only on matters of personal
concern." Melzer v. Board of Educ., 336 F.3d at 193. If the
speech "is focused on matters personal to the employee, it cannot be
classified as being on a matter of public concern and the government,
acting as an employer, `has greater latitude to discipline' the
employee." Johnson v. Ganim, 342 F.3d at 112: see also,
e.g., Melzer v. Board of Educ., 336 F.3d at 193; Cahill v.
O'Donnell, 75 F. Supp.2d 264, 272 (S.D.N.Y. 1999) (Parker, D.J.).
"In general, an employee's protests about the conditions of his or
her own employment situation do not rise to the level of public concern
necessary for First Amendment protections to attach." Munafo v.
Metropolitan Transp. Auth., Nos. 98-CV-4572, 00-CV-0134, 2003
WL 21799913 at *8 (E.D.N.Y. Jan. 22, 2003);*fn16 accord, e.g.,
Cahill v. O'Donnell, 75 F. Supp.2d at 272.*fn17 Moreover,
"`[e]ven as to an issue that could arguably be viewed as a matter of
public concern, if the employee has raised the issue solely in order to further his own employment interest, his First
Amendment right to comment on that issue is entitled to little weight.'"
Cahill v. O'Donnell, 75 F. Supp.2d at 273 (quoting White
Plains Towing Corp. v. Patterson, 991 F.2d 1049.1058 (2d Cir.),
cert. denied, 510 U.S. 865.114 S.Ct. 185 (1993)); see
also Blum v. Schlegel, 18 F.3d at 1012 ("It is true that the fact
that an employee's speech touches on matters of public concern will not
render that speech protected where the employee's motive for the speech
is private and personal."). "`A communication by an employee to an
employer in the course of the employee's normal duties, in routine form,
and containing standard contents, is not likely to address a matter of
public concern.'" Cahill v. O'Donnell, 75 F. Supp.2d at 273.
"`Whether an employee's speech addresses a matter of public concern
must be determined by the content, form, and context of a given
statement, as revealed by the whole record.'" Johnson v. Ganim,
342 F.3d at 112 (quoting Connick v. Myers, 461 U.S. at 147-48,
103 S.Ct. at 1690).*fn18 "While this determination may be somewhat
fact-intensive, it presents a question of law for the court to resolve."
Johnson v. Ganim, 342 F.3d at 112; see also, e.g.,
Melzer v. Board of Educ., 336 F.3d at 196; Morris v.
Lindau, 196 F.3d at 110; Munafo v. Metropolitan Transp.
Auth., 2003 WL 21799913 at *7 ("`Whether an employee's speech
addresses a matter of public concern is a question of law for the court
to decide, taking into account the content, form, and context of a given
statement as revealed by the whole record.'"). In making this
determination, "`the court should focus on the motive of the speaker,
attempting to discern whether the speech was calculated to redress
personal grievances or whether it had a broader public purpose.'"
Brennan v. Straub, 246 F. Supp.2d at 366. "[S]uch a determination is a question of law, not fact."
Walker v. New York City Trans. Auth., 99 Civ. 3337, 2001 WL
1098022 at *11 (S.D.N.Y. Sept. 19, 2001).
To establish a prima facie case of First Amendment retaliation, a
public employee "must demonstrate that `(1) his speech addressed a matter
of public concern, (2) he suffered an adverse employment action, and (3)
a causal connection existed between the speech and the adverse employment
action, so that it can be said that his speech was a motivating factor in
the determination.'" Cobb v. Pozzi, 363 F.3d at 102.*fn19 If a
plaintiff satisfies these factors, the government can still prevail if it
either "(1) demonstrate[s] by a preponderance of the evidence that it
would have taken the same adverse action regardless of the protected
speech, or (2) show that the plaintiff's expression was likely to disrupt
the government's activities, and that the likely disruption was
sufficient to outweigh the value of the plaintiff's First Amendment
expression." Cobb v. Pozzi, 363 F.3d at 102.*fn20 The second
of these options is known as the "Pickering balancing test."
Cobb v. Pozzi, 363 F.3d at 102. If the government relies on
the Pickering balancing test "and the balance of interests
indeed weighs in the government's favor, plaintiff may still succeed by
proving that the adverse action was in fact motivated by retaliation rather than by
fear of disruption." Mandell v. County of Suffolk, 316 F.3d at
B. Nonnenmann's Speech Addressed a Matter of Public Concern
and is Protected
by the First Amendment
The City argues that Nonnenmann's complaint to IAB does not constitute
protected speech because he was motivated to speak by his employment
obligations and private interests, since the NYPD Patrol Guide requires
all officers to report serious misconduct to IAB. (Dkt. No. 29: City Br.
at 4-9; Dkt. No. 38: City Reply Br. at 2-6.) The Court disagrees.
The subject of Nonnenmann's complaint the allegation that a
police captain's stop and frisk of a group of Hispanic males was
discriminatory is clearly a matter of public concern. "The
disclosure and attempted remediation of racially insensitive behavior by
government employees cannot be viewed as anything other than a matter of
public concern." Hagemann v. Molinari, 14 F. Supp.2d 277,
284 (E.D.N.Y. 1998); see also, e.g., Conlon v. Austin, No.
01-9280, 48 Fed. Appx. 816, 817, 2002 WL 31262078 at * 1 (2d Cir. Oct.
10, 2002) (finding plaintiff's complains "regarding racist and sexist
remarks that defendant [fire chief] allegedly made while conducting an
officers' meeting" to be "protected speech"); Wagner v. City of
Holvoke, 241 F. Supp.2d 78, 91 (D. Mass. 2003) (Plaintiff's speech
that "included allegations of racism within the [police] department . . .
were manifestly directed to matters of public concern . . . and were
entitled to protection under the First Amendment."); Bennett v.
City of Holyoke, 230 F. Supp.2d 207, 224 (D. Mass. 2002)
("Statements uncovering corruption within a police department are
precisely the type of communications that demand strong First Amendment
protection. . . .This court hereby finds that the statements made by
[plaintiff] regarding corruption and racism within the Holyoke police
department were on matters of public concern."), aff'd, 362 F.3d 1 (1st Cir. 2004);
cf., e.g., Walker v. New York City Transit Auth., 99 Civ. 3337,
2001 WL 1098022 at *12 (S.D.N.Y. Sept. 19, 2001) ("While it is true that
speech regarding discrimination may generally relate to a matter of
public concern, a court must still determine whether the particular
speech in question was a matter of public concern by examining the
circumstances of the individual case."); Daniels v. City of New
York, 138 F. Supp.2d 562, 565 (S.D.N.Y. 2001) (In denying a stay of
discovery pending appeal in a class action against the NYPD Street Crimes
Unit, Court found that staying discovery was against public interest
because "[p]laintiffs are litigating a controversial matter of serious
public concern, namely racial profiling.").
As for the context of Nonnenmann's complaint about the stop and frisk,
"[t]he key inquiry is whether the comment was made by plaintiff in his
role as a disgruntled employee or in his role as a private citizen."
Ianillo v. County of Orange, 187 F. Supp.2d 170, 181
(S.D.N.Y. 2002) (citing Connick v. Myers, 461 U.S. 138, 146,
103 S.Ct. 1684, 1690 (1983)); see also cases cited at pages
27-28 above.
The Court finds the present facts distinguishable from Cahill
v. O'Donnell, 75 F. Supp.2d 264 (S.D.N.Y. 1999) (Parker,
D.J.), on which the City heavily relies. (See Dkt. No. 29: City
Br. at 7-9; Dkt. No. 38: City Reply Br. at 3-5.) The Court in
Cahill held that the plaintiffs' speech was not entitled to
First Amendment protection, in part because their investigations and
statements arose out of the ordinary course of their work as Internal
Affairs officers. Cahill v. O'Donnell, 75 F. Supp.2d at 273.
Then-District Judge Parker explained that:
The plaintiff's work in the Internal Affairs
department is undoubtedly important, and the
vigilance and integrity of police officers is, in
a general way, a matter of public concern.
Plaintiff's actions, under the
circumstances presented here, were
encompassed within their day-to-day professional
obligations within their department and are not
fairly distinguishable from the responsibilities
of all personnel within Internal Affairs. In
this case, the plaintiffs were not attempting to bring to the public's
attention pervasive and systematic cover-up in
Internal Affairs. Rather they simply
exercised their duties, as Internal Affairs
personnel, to investigate allegedly improper
occurrences within the State Police, and to report
their findings as requested. The speech
documented in this lawsuit was not public, but was
intramural. . . .
All the admissible evidence adduced by the
plaintiffs illustrates that they were not
speaking out in an attempt publicly to expose
institutional problems or police coverups, but
rather complaining to their superiors about their
perceived mistreatment by the PBA and the lack of
support by the upper level officials. The
admissible evidence adduced on this motion
establishes that these statements were made
because of the plaintiffs' overriding desire to
clear their names and maintain their reputations
and standing with their colleagues in the
face of the attacks by the PBA.
Unlike the officers in Cahill who were assigned to IAB and
reported and investigated misconduct on a daily basis, reporting
misconduct was not among Nonnenmann's ordinary employment duties.
Further, unlike the officers in Cahill, Nonnenmann was
attempting to expose a discriminatory practice that was not in any way
directed at him, not simply a disgruntled employee seeking to redress his
personal employment grievances. Compare Knight v. City of New
York, 303 F. Supp.2d 485, 501 (S.D.N.Y. 2004) (Plaintiff's
complaints that he suffered sexual harassment and discrimination were not
entitled to First Amendment protection because they "were related solely
to his employment status and do not amount to protected speech on a
matter of public interest."); Walker v. New York Transit
Auth., 2001 WL 1098022 at *12 (Plaintiffs speech was merely a
"personal employment grievance" where he "did not protest any broad
discriminatory policies or practices" and his "complaints were `personal
in nature and generally related to h[is] own situation,'" and the "record
contains no evidence that plaintiff sought to participate in a greater
discussion about discrimination, remedy pervasive discrimination by
public officials, or engage in any broad effort to combat discriminatory
practices or bring them to public light."). Nonnenmann's speech involved in this case also contrasts with the
subject of an earlier First Amendment retaliation claim he brought
against, inter alia, the City of New York and the NYPD in 2000.
Nonnenmann v. City of New York, 174 F. Supp.2d 121, 136
(S.D.N.Y. 2001). In the earlier case, Nonnenmann alleged that he
suffered retaliation after testifying on behalf of a female, black
co-worker in her employment discrimination suit. Id. at 136. In
determining that Nonnenmann's speech was not a matter of public concern,
Chief Judge Mukasey held that "[i]n determining the scope of protected
speech,. . . it is the scope and nature of the employment dispute to
which plaintiff's speech is addressed, rather than the level of
plaintiff's self-interest, that is dispositive." Id. Although
Nonnenmann did not speak out in his own self-interest, Chief Judge
Mukasey found that Nonnenmann merely "was participating in a particular
dispute related to one employee that cannot more broadly be considered a
matter of public concern." Id. Further, although Nonnenmann
addressed serious allegations about "racial and gender prejudices" of
supervising officers, Chief Judge Mukasey noted that Nonnenmann's
testimony referred to the conduct of a few supervisors in the precinct,
rather than "system-wide discrimination." Id. Chief Judge
Mukasey also considered that both Nonnenmann and the female officer on
whose behalf he had testified entered into settlement agreements that
provided only for money damages and no modification of NYPD policies.
Id. In light of these factors, Chief Judge Mukasey concluded
that Nonnenmann's testimony on his co-worker's behalf "related to a
private employment dispute and did not involve a matter of public concern
that warrants First Amendment protection." Id.
Here, in contrast, Nonnenmann's complaint about racial profiling during
the stop and frisk by senior members of the police department (a captain
and a lieutenant) did not in any way involve him personally. Indeed, he
made the complaint to IAB at the request of another police officer. Moreover, while employment discrimination as to one
officer was found insufficient by Chief Judge Mukasey in the prior case,
Nonnenmann's complaint here involved alleged racial profiling of members
of the public by high ranking police officers. Allegations of racial
profiling by police in the New York New Jersey area had generated
tremendous amounts of press attention and public concern before
Nonnenmann's February 2002 complaint. See, e.g., David
Kocieniewski & Robert Hanley, Racial Profiling was the Routine.
New Jersey Finds, N.Y. Times, Nov. 28, 2000, at Al; David
Kocieniewski, Race Profiling by Troopers Under Review By
Legislature, N.Y. Times, Oct. 16, 2000, at B5; David Barstow &
David Kocieniewski, Records Show New Jersey Police Withheld Data on
Race Profiling, N.Y. Times, Oct. 12, 2000, at Al; David
Kocieniewski, U.S.Will Monitor New Jersey Police on Race
Profiling, N.Y. Times, Dec. 22, 1999, at Bl. Indeed, the City
concedes "that, as a general matter, racial profiling is a subject of
public concern." (City Reply Br. at 3.) As the Second Circuit has noted:
The effectiveness of a city's police department
depends importantly on the respect and trust of
the community and on the perception in the
community that it enforces the law fairly,
even-handedly, and without bias. . . . If the
police department treats a segment of the
population of any race, religion, gender, national
origin, or sexual preference, etc., with contempt,
so that the particular minority comes to regard
the police as oppressor rather than protector,
respect for law enforcement is eroded and the
ability of the police to do its work in that
community is impaired.
The Court rejects the City's final argument, that Nonnenmann's
complaint to IAB was not entitled to protection because it was required
by his job duties, that is, NYPD Patrol Guide 207-21 which requires
police personnel to report to IAB about "`serious misconduct of which
they become aware'" or are informed. (City Br. at 7, quoting Ex. X:
Patrol Guide 207-21: see also Dkt. No. 38: City Reply Br. at
3-5.) While Cahill found speech to be part of "routine business
and normal police duties" when made by Internal Affairs personnel,
Cahill v. O'Donnell, 75 F. Supp.2d at 273, the Court does not
believe it appropriate to extend that to all police personnel. The City's
argument would deprive all police personnel of First Amendment
protection; for no matter how much the speech is of public concern, it
would be the officer's duty to make a report, and thus, under the City's
logic, no First Amendment protection could ever attach.*fn21 The City
cites no case for this extension of Cahill. Under the City's
logic, police officers like Serpico who expose systemic corruption in the
police department would have no First Amendment protection, since the
City would claim they were "merely complying with the duties of [their]
job," as required by the Patrol Guide.*fn22 (City Br. at 8.) This is
not, nor should it be, the law. Nonnenmann's complaint to IAB alleging racial profiling by senior
police officers during the stop and frisk is entitled to First Amendment
protection. The Court therefore must consider whether Nonnenmann suffered
an adverse employment action(s) as a result of his IAB complaint.
C. Most Of The Retaliatory Acts Nonnenmann Alleges Are Not
Adverse Employment Actions
"The Supreme Court has suggested that a First Amendment retaliation
claim may prove susceptible to summary judgment in cases where the
plaintiff cannot establish the threshold showing of retaliation."
Barry v. New York City Police Dep't, 01 Civ. 10627, 2004 WL
758299 at *6 (S.D.N.Y. Apr. 7, 2004).
Nonnenmann alleges that he suffered retaliation as follows: (1) an
allegedly disciplinary February 18, 2002 meeting with Capt. Galatioto,
(2) several departmental interviews as part of the stop-and-frisk
investigation, including one on the day before Nonnenmann's wedding, (3)
an allegedly embarrassing July 12, 2002 Compstat meeting, (4) denial of
Nonnenmann's Sixth Amendment right to counsel by the IAB, (5) denial of
department time to receive medical attention for a line-of-duty injury,
(6) denial of overtime for time IAB ordered Nonnenmann to stay at home,
(7) denial of cash for overtime in lieu of time credit, (8) touching and
harassment by Capt. Galatioto about Nonnenmann's uniform on February 25,
2003, (9) transfer from the 1st Platoon to the 2d Platoon on May 31,
2002, and (10) removal from two days of scheduled overtime in February
2003. (Dkt No. 29: City Br. at 10-11; Dkt. No. 34: Nonnenmann Br. at
11-13: see also pages 4-19 above.) Nonnenmann's retaliation claim fails as to all but the last acts listed
his transfer to the 1st Platoon and removal from scheduled
overtime.*fn23 The other actions do not constitute "adverse employment
actions" under Second Circuit law.
"In order to prove her First Amendment retaliation claim, plaintiff
must show [inter alia] that . . . she suffered from an
adverse employment action." Quoka v. City of West Haven, No.
02-7675, 64 Fed. Appx. 830, 832, 2003 WL 21223422 at *2 (2d Cir. May
22, 2003) (quoting Phillips v. Bowen, 278 F.3d 103, 109
(2d Cir. 2002)); see also cases cited at page 29 above. The
Second Circuit has held that "[t]o constitute an adverse employment
action . . . a change in working conditions must be `materially
adverse.'" Patrolmen's Benevolent Assoc. v. City of New
York, 310 F.3d 43, 51 (2d Cir. 2002) (quoting Galabya v. New
York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)),
cert. denied, 538 U.S. 1032, 123 S.Ct. 2076 (2003); accord,
e.g., Barry v. New York City Police Dep't, 2004 WL 758299 at *6.
A materially adverse change "must be more
disruptive than a mere inconvenience or an
alteration of job responsibilities" and "might be
indicated by a termination of employment, a
demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material
loss of benefits, significantly diminished
material responsibilities, or other indices
. . . unique to a particular situation."
First, the February 18, 2002 meeting with Capt. Galatioto was not an
adverse employment action because, as Nonnenmann admits, Capt. Galatioto
did not discipline him during or as a result of the meeting. (Nonnenmann
Dep. at 108, 138; see also page 11 & fn.5 above.)
Similarly, Nonnenmann's attendance at IAB interviews related to the
stop-and-frisk investigation were not adverse employment actions.
Although Nonnenmann argues that the meetings were intended to harass him
(Dkt. No. 14: Am. Compl. ¶¶ 14, 20, 28), as one of the officers on the
scene of an allegedly discriminatory stop-and-frisk and the source of the
IAB complaint against Capt. Galatioto, Nonnenmann's participation appears
not only understandable but expected particularly after
Nonnenmann was added as a subject of the investigation for failure to
timely report the incident. The fact that one of the interviews was
scheduled for the day before Nonnenmann's wedding was no more disruptive
than a "mere inconvenience." Patrolmen's Benevolent Assoc. v.
City of New York, 310 F.3d at 51; see also, e.g., Alien v. St.
Cabrini Nursing Home. Inc.,. 198 F. Supp.2d 442, 449 (S.D.N.Y.
2002) ("The courts in this circuit have consistently held that mere
scheduling inconveniences do not constitute an adverse employment action
absent a materially significant change in plaintiff's employment."), aff'd,
No. 02-7630, 64 Fed. Appx. 836, 2003 WL 21369263 (2d Cir. June 13, 2003),
cert. denied, 124 S.Ct. 1158 (2004).
Next, Nonnenmann alleges that his attendance at the July 12, 2002
Compstat meeting was retaliatory because Capt. Galatioto allegedly
"stated he was going to put [Nonnenmann] on the podium and see
that [Nonnenmann] was publicly embarrassed." (Am. Compl. ¶ 40;
see pages 11-12 above.) However, Capt. Galatioto never called
Nonnenmann to the podium and Nonnenmann concedes that no acts of
discrimination or retaliation against him were committed at the July 12,
2002 meeting. (Nonnenmann Dep. at 124-25; Nonnenmann Aff. ¶ 94; Am.
Compl. ¶ 40.) Further, Nonnenmann's claim that he felt "publicly
embarrassed" by" [w]atching the higher-ups on the Police Department to
commit [a]n act of gender discrimination against Chief Kunk[le]"
(Nonnenmann Dep. at 125; Am. Compl. ¶ 40), is not an adverse
employment action against Nonnenmann. See, e.g., Islamic Soc'v of
Fire Dep't Pers. v. City of New York, 205 F. Supp.2d 75,
85 (E.D.N.Y. 2002) ("[C]ourts in this circuit have universally rejected
attempts by plaintiffs to show an adverse employment action based simply
on the plaintiff's personal feelings about the employers actions.")
(& cases cited therein).
The alleged denial of Nonnenmann's Sixth Amendment right to counsel at
IAB interviews is not "a change in working conditions" let alone one that
is "materially adverse." Patrolmen's Benevolent Assoc. v.
City of New York, 310 F.3d at 51; see Point III below.
Three of Nonnenmann's claims regarding overtime credits are moot
because he admitted that he was compensated for the time in question.
First, although Nonnenmann claims Capt. Galatioto required him to attend
a medical appointment on personal time, according to the IAB Findings
& Case Closing Report, Nonnenmann was later granted compensation for
the lost time. (Ex. Y: 4/23/03 IAB Rpt.) Second, although Nonnenmann complains
that Capt. Galatioto allegedly denied him one hour and twenty minutes of
overtime on May 3, 2002 (Am. Compl. ¶ 29), Nonnenmann admits that he
was eventually paid for that overtime. (Nonnenmann Aff. ¶ 78;
Nonnenmann Dep. at 113-14; Nonnenmann Aff. Ex. G: Nonnenmann 5/30/02
Approved Overtime Slip.)*fn25
Nor has Nonnenmann shown adverse employment actions based on Capt.
Galatioto's February 5 and 11, 2003 "unlawfully touching" of Nonnenmann,
and the February 25, 2003 accusation that Nonnenmann was wearing an
improper uniform. Nonnenmann refers to Capt. "Galatioto physically
touch[ing]" him on "several occasions" (Nonnenmann Aff. ¶ 143), but
details only one incident in which Capt. Galatioto "ripped a clip board
from" his hands. (Nonnenmann Br. at 13.) Nonnenmann fails to show how any
of these minor incidents of non-sexual touching materially adversely
changed his employment conditions. See, e.g., Weeks v. New York
State Div. of Parole, 273 F.3d 76, 86-87 (2d Cir. 2001) (Plaintiff
failed to show that her "physical removal" from an office was an adverse
employment action "because [plaintiff] does not allege what tangible adverse effect this incident had on the terms and conditions of her
employment." "[F]eeling `frightened' or `intimidated' is irrelevant if
there is no `materially adverse change in the terms and conditions of
employment.'") (quoting Torres v. Pisano,
116 F.3d 625, 640 (2d Cir.), cert. denied, 522 U.S. 997, 118 S.Ct. 563
(1997)), abrogated on other grounds by National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002);
Jenkins v. New York State Dep't of Corr., 01 Civ. 0754, 2002
WL 205674 at *6 (S.D.N.Y. Feb. 8, 2002) (Shove and verbal harassment by
employer on one occasion "that was devoid of any indicia of
[discriminatory] motive . . . may have caused anxiety or embarrassment,
[but] it did not prevent [plaintiff] from doing his job and thus is not
an adverse employment action."); cf., e.g., Faragher v. City of
Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283-84 (1998)
(Under Title VII, "`simple teasing,' offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory
changes in the `terms and conditions of employment.'" To prevent Title
VII from becoming a "general civility code," the Supreme Court has "made
it clear that conduct must be extreme to amount to a change in the terms
and conditions of employment.") (citation omitted). Moreover, because
Capt. Galatioto's accusation about Nonnenmann's uniform did not result
in any disciplinary action, Capt. Galatioto's criticism alone does not
rise to the level of an adverse employment action. See, e.g., Diaz
v. Weill Med. Ctr. of Cornell Univ., 2004 WL 285947 at *21 n.30
("[I]t is well-settled that a negative evaluation alone is not an adverse
employment action.") (& cases cited therein); Jenkins v. New
York State Dep't of Corr., 2002 WL 205674 at *6 (Employer's
reprimand for plaintiff's use of an unauthorized parking space, may have
caused plaintiff embarrassment, but he "does not allege that the
reprimand had any adverse impact on the actual performance of his
duties."). Although the Second Circuit has held that "`a combination of seemingly
minor incidents' could `form the basis of a constitutional retaliation
claim,'. . . the incidents alleged here do not rise to the level of a
`pattern of nearly constant harassment' necessary to sustain such a
claim." Conlon v. Austin, No. 01-9280, 48 Fed. Appx. 816,
817, 2002 WL 31262078 at *1 (2d Cir. 2002) (quoting Phillips v.
Bowen, 278 F.3d at 108-09); see also, e.g., Barry v. New York
City Police Dep't, 2004 WL 758299 at *7. The Court concludes that
"while plaintiffs complaints were protected speech, he has failed to
raise a genuine issue that any of these alleged actions by defendant
constituted adverse employment decisions as defined by this Court."
Conlon v. Austin, 2002 WL 31262078 at *1.
D. Nonnenmann Cannot Establish a Causal Connection Between His
Speech and
the Remaining Adverse Employment Actions
Nonnenmann cannot establish a causal connection between his February 3,
2002 complaint to IAB about the stop-and-frisk and the two remaining
retaliatory actions. Capt. Galatioto transferred Nonnenmann from the 1st
Platoon to the 2d Platoon on May 31, 2002 as part of a re-assignment of
all Platoon Leaders in the 110th Precinct. (See pages 8-9
above.)*fn26 In February 2003, a full year after Nonnemann's
stop-and-frisk complaint, Capt. Galatioto cancelled two days of Nonnenmann's scheduled overtime on Mondays in February 2003 when he
assigned the Anti-Crime Team to Mondays. (City 56.1 Stmt. ¶ 64;
Nonnenmann 56.1 Stmt. ¶ 78; see page 13 above.)*fn27
The Second Circuit has held that the causal connection between the
protected speech and the adverse employment action "must be sufficient to
support the inference `that the speech played a substantial part in the
employer's adverse employment action.'" Diesel v. Town of
Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000); Morris v.
Lindau, 196 F.3d 102, 110 (2d Cir. 1999) ("The causal connection
must be sufficient to warrant the inference that the protected speech
was a substantial motivating factor in the adverse employment
action, that is to say, the adverse employment action would not have been
taken absent the employee's protected speech."); Blum v.
Schlesel, 18 F.3d 1005, 1010 (2d Cir. 1994): Barry v. New
York City Police Dep't, 01 Civ. 10627, 2004 WL 758299 at *7
(S.D.N.Y. Apr. 7, 2004); Kantha v. Blue, 262 F. Supp.2d 90,
103 (S.D.N.Y. 2003). "Causation can be established either indirectly
by means of circumstantial evidence, for example, by showing
that the protected activity was followed by adverse treatment in
employment, or directly by evidence of retaliatory animus."
Morris v. Lindau, 196 F.3d at 110; accord, e.g., Mandell
v. County of Suffolk, 316 F.3d 368, 383 (2d Cir. 2003);
Gilligan v. Town of Moreau, No. 00-7109.234 F.3d 1261 (table).
2000 WL 1608907 at *2 (2d Cir. Oct. 25.2000): Barry v. New York City
Police Dep't, 2004 WL 75 8299 at *7; Stein v. Janos,
269 F. Supp.2d 256, 260 (S.D.N.Y. 2003); Kantha v. Blue,
262 F. Supp.2d at 103.*fn28 "The cases that accept mere temporal proximity between an employer's
knowledge of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be Very close.'"
Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74,
121 S.Ct. 1508.1511 (2001): accord, e.g., Diaz v. Weill Med.
Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *22 (S.D.N.Y. Feb.
13, 2004) (Peck, M. J.) (citing cases). The Second Circuit "has not
drawn a bright line to define the outer limits beyond which a
temporal relationship is too attenuated to establish a causal
relationship between the exercise of a federal constitutional right
and an allegedly retaliatory action." Gorman-Bakos v. Cornell Coop.
Extension, 252 F.3d 545, 554 & n.5 (2d Cir. 2001) (collecting cases); see
also, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 2004 WL 285947
at *22. Nevertheless, the respective spans of four months and one year
between Nonnenmann's speech and the adverse employment actions are not
the "very close" proximity sufficient to raise an inference of causality.
See, e.g., Hollander v. American Cyanamid Co., 895 F.2d 80,
85-86 (2d Cir. 1990) (Three and one-half month lapse between plaintiffs
agency complaints and alleged retaliatory act insufficient to show causal
nexus.); Punsal v. Mount Sinai Servs., 01 Civ. 5410, 2004 WL
736892 at *13 (S.D.N.Y. Apr. 6, 2004) ("[B]ecause ten months passed
between the time when plaintiff filed the SDHR/EEOC complaint and
plaintiff's termination, this is not a case in which temporal proximity
demonstrates a causal nexus between the charge of discrimination and a
plaintiffs subsequent termination."); Diaz v. Weill Med. Ctr. of
Cornell Univ., 2004 WL 285947 at *22 (five month gap not
sufficiently close to show causation); Knight v. City of New
York, 303 F. Supp.2d 485, 497 (S.D.N.Y. 2004) ("[T]he temporal
sequence [of about fifteen months] fails as a matter of law to establish
that [plaintiff's] harassment complaint prompted the negative
evaluations."); Admassu v. Fox/Lorber Assocs., Inc., 99 Civ.
2665, 2003 WL 22290226 at *6 (S.D.N.Y. Oct. 6, 2003) (Allegedly
retaliatory e-mails sent six months after plaintiff filed her EEOC
complaint were "simply too far removed temporally from the filing of the
EEOC complaint to raise an inference of retaliation."); Khan v.
Abercrombie & Fitch. Inc., 01 Civ. 6163, 2003 WL 22149527
at *9 (S.D.N.Y. Sept. 17, 2003) ("[T]he five-month gap between
[plaintiff's]. . . addition to her . . . NYCCHR complaint and her
termination, combined with the absence of other evidence, are too great
to infer a causal connection.") (& cases cited therein);
Lewis v. Snow, 01 Civ. 7785, 2003 WL 22077457 at *8
(S.D.N.Y. Sept. 8, 2003) (Motley, D.J.) ("Plaintiff fails to make a
showing of protected activity which was `followed closely by' the alleged
retaliatory treatment" where there was a more than three-month gap
between them.) (& cases cited therein); Rinsler v. Sony
Pictures Entm't. Inc., 02 Civ. 4096, 2003 WL 22015434 at
*9 (S.D.N.Y. Aug. 25, 2003) ("The almost six-month lag between [the
protected activity] and the alleged retaliatory termination . . . is
too temporally remote to support a retaliation claim.") (citing cases);
Stuevecke v. New York Hosp. Med. Ctr., No. 01-CV-326,
2003 WL 22019073 at *5 (E.D.N. Y. Aug. 26, 2003) (protected activity and
termination "occurred more than five months apart
a period which is too distant to permit a jury to find a causal
connection between the two events based on time proximity."):
Sussle v. Sirina Prot. Sys. Corp., 269 F. Supp.2d 285,
315-16 (S.D.N.Y. 2003) ("The four-month interval between the
Plaintiffs [protected activity] in April 1999 and his termination in July 1999 is insufficient evidence of a causal
connection. . . . In fact, courts have repeatedly held that a
four-month interval does not establish a causal connection for the
purposes of a retaliation claim.") (& cases cited therein);
Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at
*18 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.) ("Standing alone, the
lapse of more than four months between [plaintiff's] filing of her EEOC
charge . . . and [the alleged retaliatory action]. . ., is
insufficient evidence of a causal connection.") (citing cases),
aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir.
Dec. 21, 2001).*fn29
Accordingly, because Nonnenmann has failed to show that any adverse
employment actions were caused by his protected speech, defendants are
entitled to summary judgment dismissing his First Amendment § 1983
Nonnenmann claims his Sixth Amendment right to counsel was violated
when Captain McCluskey "ordered [him] not to speak to potential
witnesses" to the stop and frisk and "ordered [Nonnenmann] to turn over
information." (Dkt. No. 14: Am. Compl. ¶¶ 20-21, 61; Dkt. No. 28: City
56.1 Stmt. ¶ 39; Dkt. 34: Nonnenmann Br. at 20.) Nonnenmann claims
that at the time of Capt. McCluskey's orders, Nonnenmann "knew he would
be representing himself in an administrative proceeding, in civil litigation (Notice of Claims
were filed) and would be preparing to defend against criminal charges."
(Nonnenmann Br. at 20.)*fn30
It is well-settled that the Sixth Amendment right to counsel does not
apply in civil cases. See, e.g., Thomas v. Lord, No. 99-345,
234 F.3d 1263 (table), 2000 WL 1551566 at *1 (2d Cir. Oct. 16, 2000)
("The Sixth Amendment's guarantee of the assistance of counsel,
however, does not generally apply to civil actions."); Allah v.
Irvin, No. 94-2678, 89 F.3d 826 (table), 1995 WL 722543 at *1
(2d Cir. Nov. 17, 1995) (rejecting § 1983 plaintiffs "Sixth Amendment
argument because a party has no constitutionally guaranteed right to the
assistance of counsel in a civil case."); Smylis v. City of New
York, 983 F. Supp. 478, 481 (S.D.N.Y. 1997) (Court rejected
City employee's § 1983 claim that the City violated his Sixth
Amendment rights because "[t]he Sixth Amendment, however, applies only to
criminal prosecutions."). Moreover, an individuals's Sixth Amendment right to counsel attaches
only at the time when adversary criminal proceedings are initiated
against him, and since any NYPD disciplinary proceedings against
Nonnenmann were not criminal prosecutions, he did not have a Sixth
Amendment right to counsel. See, e.g., McCullough v. City
of New York, 90 Civ. 2276, 1991 WL 130922 at *4 (S.D.N.Y. July
9, 1991) (Court rejected police officer's claim that he was deprived his
Sixth Amendment right to counsel during NYPD disciplinary hearings
"because the [NYPD] disciplinary proceeding was not a `criminal
prosecution' within the meaning of the Sixth Amendment."); cf.,
e.g., Erbacci, Cerrone. & Moriarty. Ltd. v. United States,
939 F. Supp. 1045, 1056 (S.D.N.Y. 1996) ("[P]laintiffs' Sixth Amendment
claim is meritless because the United States Constitution does not afford
a plaintiff any right to confront witnesses in an internal, union
disciplinary investigation. . . . Because the allegations at issue were
not raised as part of a criminal proceeding, plaintiffs had no Sixth
Amendment right to confront their accusers, and accordingly plaintiffs'
Sixth Amendment claim is meritless.").
Most importantly, because the the NYPD never filed any criminal charges
against Nonnenmann, his Sixth Amendment right to counsel never attached.
The Second Circuit has held that "[t]he Sixth Amendment's right to
counsel attaches at the `initiation of adversary judicial proceedings,'
such as the filing of an indictment." United States v. Yousef,
327 F.3d 56, 140 (2d Cir.) (quoting United States v. Gouveia,
467 U.S. 180, 188, 104 S.Ct. 2292, 2297 (1984)), cert.
denied, 124 S.Ct. 353 (2003); see also, e.g., Deshawn E. v.
Safir, 156 F.3d 340, 349 (2d Cir. 1998) ("The Sixth Amendment right
to counsel attaches at `the time that adversary judicial proceedings have
been initiated.'"). In New York, "a criminal proceeding, and with it the
right to counsel, is initiated by the filing of an accusatory
instrument." Deshawn E. v. Safir, 156 F.3d at 349. As Nonnenmann admits, the NYPD never filed criminal charges against
him. (See Nonnenmann Aff. ¶ 43: "No charges were ever
brought."). Because adversary proceedings never commenced, Nonnenmann's
Sixth Amendment right to counsel never attached. Accordingly, Nonnenmann
fails to state a Sixth Amendment violation, and his claim should be
Nonnenmann alleges that in violation of the Fair Labor Standards Act
and the NYPD's Collective Bargaining Agreement with the LBA, his "salary
and pension benefits have been reduced all to his damage in the sum of
$750,000.00." (Dkt. No. 14: Am. Compl. ¶ 69.) The City argues that
Nonnenmann, as a Lieutenant, is exempt from the FLSA overtime provisions.
(Dkt. No. 29: City Br. at 24.) Nonnenmann's response to the City's
summary judgment argument reads, in full:
Defendants have violated plaintiffs rights by
denying wage, overtime and employment benefits
which violate the FLSA and the collective
bargaining agreement. Plaintiff's affidavit and
Exhibits thereto have discussed this issue. The
FLSA has applicability on issues other than
"The FLSA requires employers to pay employees overtime wages, at the
rate of time and a half, for hours worked in excess of 40 hours in a
single week." Abramo v. City of New York, Nos. 01-9233,
01-9230, 01-9232, 54 Fed. Appx. 708, 710, 2003 WL 57284 at *1
(2d Cir. Jan. 6, 2003) (citing 29 U.S.C. § 207). However, employees
who are "`employed in a bona fide executive, administrative, or
professional capacity are exempt from the FLSA's overtime requirements.
Abramo v. City of New York, 2003 WL 57284 at *1 (quoting
29 U.S.C. § 213 (a)(1)). Lieutenants are among the employees exempt from
the FLSA overtime requirements. Abramo v. City of New York, 2003 WL 57284 at *2, aff'g, Kelly v. City of New
York, 91 Civ. 2567, 91 Civ. 7343, 91 Civ. 7755, 2001 WL 1132017 at
*8 (S.D.N.Y. Sept. 24, 2001).
The Court interprets Nonnenmann's response to the City's argument"
[t]he FLSA has applicability on issues other than overtime" as an
admission that, as a Lieutenant, he is exempt from the FLSA overtime
provisions. The parties disagree, however, as to whether Nonnenmann was
"working" on or about June 2, 2002, when IAB ordered him to remain home
after he filed an IAB complaint against Galatioto on June 1, 2002.
Nonnenmann states:
On or about June 2, 2002, IAB called plaintiff at
his residence, a Sgt. possibly named Laport,
ordered plaintiff to remain at his residence
pending further instructions from his Group
captain. Plaintiff submitted an overtime
request for 6 hours [and] was paid and defendant
Galatioto subsequently ordered pay roll to dock
plaintiff the 6 hours that he was paid for.
Plaintiff has the right to seek 53 hours of
overtime. Sgt. Laport directed plaintiff to
stay in his residence pending instructions from
his captain. Plaintiff remained in his
residence for 53 hours, until he left to report
for his next tour of duty.
If Nonnenmann was "working" during the time IAB ordered him to remain
home on or about June 2, 2002, he would be entitled to payment for that
time under the FLSA.
"[T]he trial judge [is] responsible for determining as a matter of law
whether plaintiff's activities could potentially constitute `work.'
. . .[W]hat qualifies as compensable work under the FLSA is
determined by whether the employee's activity is controlled or required
by the employer, is necessarily and primarily for the benefit of the
employer, and is an integral and indispensable part of the job."
Holzapfel v. Town of Newburgh, 145 F.3d 516, 521, 528
(2d Cir.), cert. denied, 525 U.S. 1055, 119 S.Ct. 619 (1998);
see, e.g., Monserrate v. City of New York, 99 Civ. 12173,
2000 WL 1741673 at *1 (S.D.N.Y. Nov. 27, 2000) ("[T]his court is
required to determine whether Plaintiffs' activities fall within the
definition of the term `work' sufficient for them to maintain their cause
of action."). "The first issue to address is whether the alleged activity
could potentially constitute `work' under the FLSA. This is an issue of
law to be determined by the trial judge." Capasso v. Metropolitan
Transp. Auth., 198 F. Supp.2d 452, 459 (S.D.N.Y. 2002). "Once
decided, the factfinder must `decide as a question of fact, not only how
much of plaintiff's time . . .[falls] within the court's definition of
`work' and would be compensable, but also how much of that time was spent
with the employer's actual or constructive knowledge.'" Id.
(quoting Holzapfel v. Town of Newburgh, 145 F.3d at
The Supreme Court has "counseled that the determination of what
constitutes work is necessarily fact-bound." Reich v. Southern New
England Telecomm. Corp., 121 F.3d 58, 64 (2d Cir. 1997) (quoting
Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165,
168 (1944) ("Whether time is spent predominantly for the employer's
benefit or for the employee's is a question dependent upon all the
circumstances of the case.")); see, e.g., Skidmore v. Swift,
323 U.S. 134, 136-37, 658. Ct. 161, 163(1944) ("Whether in a concrete
case such time falls within or without the [Fair Labor Standards] Act is
a question of fact to be resolved by appropriate findings of the trial
court. . . . The law does not impose an arrangement upon the parties. It
imposes upon the courts the task of finding what the arrangement was.");
see also, e.g., Daniel B. Abrahams, Sandra J. Boyd, Gilbert J.
Ginsburg, Employer's Guide to the FLSA § 620 (Dec. 2002)
(The Supreme Court has held that "determination of the compensability of
on-call time involves a fact-specific, case-by-case analysis.") 2 Compensation & Benefits § 13:4 "Factors
Affecting the Determination of Time Worked" (2004) (enumerating factors
to be considered).
"Time spent away from the employer's premises under conditions that are
so circumscribed that they restrict the employee from effectively using
the time for personal pursuits . . . constitutes compensable hours of
work." 29 C.F.R. § 553.221 (c); see also, e.g., 3 Emp.
Coord. Compensation ¶ 23:7, "Compensable Hours of Work" (2004) ("Time
spent away from the employer's premises under conditions so circumscribed
that they restrict the employee from effectively using the time for
personal pursuit . . . constitutes compensable hours of work.); Daniel
B. Abrahams, Sandra J. Boyd, Gilbert J. Ginsburg, Employer's Guide
to the FLSA § 620 ("When an employer requires employees to
remain in a fixed location while on call, the courts and DOL [Department
of Labor] are likely to consider this on-call time to be compensable
under the FLSA."); cf. e.g., 29 C.F.R. § 778.223 ("If the
employees who are thus on call are not confined to their homes or to any
particular place, but may come and go as they please, provided that they
leave word where they may be reached, the hours spent `on call' are not
considered as hours worked."); 29 C.F.R. § 785.17 ("An employee who
is required to remain on call on the employer's premises or so close
thereto that he cannot use the time effectively for his own purposes is
working while `on call.' An employee who is not required to remain on the
employer's premises but is merely required to leave word at his home or
with company officials where he may be reached is not working while on
The City does not dispute Nonnenmann's allegation that he was ordered
to remain at home, but the Court cannot resolve Nonnenmann's claim on
that fact alone. See Skidmore v. Swift & Co., 323 U.S.
at 136-37, 65 S.Ct. at 163. Because factual issues exist as to
whether Nonnenmann is entitled to payment for the time IAB ordered him to
remain at home, defendants' summary judgment motion as to this claim should be denied and Nonnenmann's
FLSA claim against the City should proceed to trial.*fn31 See,
e.g., Brown v. Luk, No. 95-CV-1780, 1996 WL 280831 at *5
(N.D.N.Y. May 10, 1996) ("After reviewing the record, the Court must deny
judgment on the pleadings as to plaintiffs' overtime claims. First, `on
call' time may, depending on the circumstances, qualify as `work' under
the FLSA such that it would be overtime compensable. . . .[T]he
Second Circuit does not appear to have spoken definitively on this issue,
but two predominant factors that a court probably should consider in its
inquiry are (1) the degree to which employees are free to engage in
personal activities while on-call; and (2) whether any agreements exist
between the employer and employees in regard to whether on-call time
would be compensable. ") (citations omitted).
Nonnenmann alleges defamation by defendant Chief Cannon during Chief
Cannon's address to the 3d Platoon on February 13, 2002. (Dkt. No. 14:
Am. Compl. ¶¶ 62-65; see pages 15-17 above.)
Chief Cannon admits that during his address he said "something to the
effect of I'd rather ride in a radio car with an officer like the captain
out on patrol after midnight so he doesn't have to be backing up police
officers as they respond to a ra[]dio run specifically one involving a
gun and getting out and taking police action. I'd rather ride next to an
officer like that than some malcontent who hates his job. . . ."
(Cannon Dep. at 52; see Nonnenmann Aff. ¶ 215: see
also pages 14-16 above.) According to Chief Cannon, he "made statements in
support of [Capt. Galatioto], and . . . made statements regarding what
[Chief Cannon] believed to be inaccurate statements in the newspaper
article that had been published that day." (Cannon Dep. at 17-18:
see also Nonnenmann Aff. ¶ 215; Nonnenmann 56.1 Stmt. ¶¶
42-43.) While it is undisputed that Chief Cannon did not name Nonnenmann
(see page 16 above), the Daily News article that he sought to
address specifically identified Nonnenmann as one of Capt. Galatioto's
accusers. (Nonnenmann 56.1 Stmt. Ex. G: John Marzulli, 3 Cops Accuse
Chief of Misconduct v. Latinos, N.Y. Daily News, Feb. 12, 2002).
"In deciding whether the jury should be allowed to pass upon statements
alleged to be defamatory, the court need only determine that the
contested statements are reasonably susceptible of defamatory
connotation. If any defamatory construction is possible, it is a question
of fact for the jury whether the statements were understood as
defamatory." Albert v. Loksen, 239 F.3d 256, 267 (2d Cir. 2001)
(internal quotations omitted); see, e.g., Lucking v. Maier,
03 Civ. 1401, 2003 WL 23018787 at *3 (S.D.N.Y. Dec. 23, 2003) ("The Court
renders the threshold determination of whether the challenged passage is
`reasonably susceptible of a defamatory meaning.'") (& cases cited
therein); Haugh v. Schroder Inv. Mgmt. N.A., Inc., 02 Civ.
7955, 2003 WL 21136096 at *2 (S.D.N.Y. May 15, 2003) ("It is for the
court to make the threshold determination as to whether the statement at
issue is susceptible of one or many meanings, and whether that meaning is
defamatory as a matter of law. In making this determination, the court
employs an objective standard and considers whether an ordinary person
would find the statement reasonably susceptible of a defamatory
connotation.") (citations and internal quotations omitted). The Court finds that Chief Cannon's statement is "reasonably
susceptible of defamatory meaning." Material issues of fact exist as to
whether Chief Cannon's statement was understood by the platoon members as
referring to Nonnenmann.*fn32 Accordingly, Nonnenmann's defamation claim
against Chief Cannon should proceed to trial.*fn33
The Court notes that were the City to pay Nonnenmann for the
fifty-three hours that he claims he remained at home, thereby resolving
his FLSA claim, it would obviate the need for a trial on that issue and
allow the Court to dismiss Nonnenmann's defamation claim without
prejudice.*fn34 CONCLUSION
For the reasons stated above, the City's summary judgment motion should
be granted in part and denied in part. The defendants should be granted
summary judgment dismissing Nonnenmann's claims under § 1983
the First Amendment and the Sixth Amendment, and otherwise denied.
Nonnenmann's Fair Labor Standards Act claim against the City and
Nonnenmann's defamation claim under New York state law against Chief
Cannon should proceed to trial.
The Joint Pretrial Order is due thirty days from this Report and
Recommendation, that is, by June 21, 2004.
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Alix Partners Hires Former J.P. Morgan Top Shot
- Details
- Monday, 9 May 2016 22:22
Alix Partners has added another top shot to its team of consultants, shortly after the appointment of Hans Ziegler. This time, the company has managed to add first-class banking expertise to its portfolio.
Pascal Ravery on May 1 started as senior adviser for the Swiss team of Alix Partners, the company said in a statement today.
Alix Partners, which in Switzerland is managed by Beatrix Morath, has landed one of the best connected bankers in the country. Ravery was chairman of J.P. Morgan Switzerland, head of J.P. Morgan Securities Zurich and deputy chairman of the European investment bank at the U.S. institute.
Loyal Manager
finews.ch ranked him as one of Switzerland's most influential bankers. The Frenchman, 59, was loyal to J.P. Morgan for 23 years and worked for a further seven years at Goldman Sachs. He was one of the few experienced investment bankers instrumental in arranging mergers and acquisitions internationally.
Last year, Ravery founded Lakeside Capital Advisers, a Baar-based consultancy. With his company, he advises family shareholders, boards and companies in need of restructuring and reorganization.
Involved in Syngenta Deal
He was involved in the sale of SGS to GBL, the merger of Lafarge and Holcim as well as the sale of Syngenta to Chemchina.
Landing Ravery as a senior adviser is the second coup of Alix Partners within months. The company in January hired Hans Ziegler, the adviser specialized in turnaround mandates.
Alix Partners has 1,500 employees worldwide, with 25 branches and a Swiss representation since 2014.
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