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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
EDREWEENE RAYMOND, ADHYL POLANCO, PEDRO SERRANO, SANDY GONZALEZ, RITCHIE BAEZ, JULIO DIAZ, FELICIA WHITELY, ROMAN GORIS, DERICK WALLER, KAREEM ABDULLAH, OLAYOKUN OLAGOKE, and WIDMARC PIERRE individually, and on behalf of a class of all others similarly situated,

-against-

Plaintiffs,

Docket No.
CLASS ACTION COMPLAINT AND JURY DEMAND

THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, THE MAYOR OF THE CITY OF NEW YORK BILL de BLASIO, in his individual and and official capacity, POLICE
COMMISSIONER WILLIAM J. BRATTON, In his individual and official capacity, NYPD CHIEF OF DEPARTMENT JAMES P. O'NEILL, in his individual and official capacity, and NYPD COMMANDING OFFICER OF PATROL SERVICES, BUREAU CHIEF CARLOS M. GOMEZ, in his individual and official capacity,

Defendants.

Plaintiffs, Edreweene Raymond, Adhyl Polanco, Pedro Serrano, Sandy Gonzalez, Ritchie Baez, Julio Diaz, Felicia Whitely, Roman Goris, Derick Waller, Kareem Abdullah, Olayokun Olagoke, and Widmarc Pierre, for themselves individually and on behalf of all others similarly situated, to wit, Iatino and black police officers within the New York City Police Department, (hereinafter, "Plaintiffs") by and through their attorneys, Nwokoro & Scola, Esquires, allege the following upon information and belief,

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against the City ofNew York, New York City Police Department, the New York City Police Commissioner William J. Bratton, NYPD Chief of Department James P. O'Neill, and NYPD Bureau Chief Carlos M. Gomez.

PRELIMINARY STATEMENT

1.

This is an action for declaratory and injunctive relief and for compensatory

damages to redress the deprivation of rights, and prevent future violations of the same rights which are secured to the plaintiffs by the 1st, Amendment, (depriving plaintiff of the right of free expression by punishing and retaliating against the plaintiffs for complaining about and speaking out against the quota) the 5th, and 14th Amendments

(depriving plaintiffs of benefits without due process), and the 14th Amendment

(depriving plaintiffs of the equal protection of the laws by discriminating against the plaintiffs on the basis of race and national origin in the administration of disciplinary measures for failure to meet the quota) and for violations ofthe Civil Rights Act of 1866, 42 U.S.C. § 1981,42 U.S.C. §1983, 42 U.S.C. §1985, the New York State Human Rights Law, New York Executive Law §296; New York City Local Law 59 of 1986, as

amended by Local Rule 39 of 1991, §§8-101, et seq,; and multiple and systemic

violations ofNew York State Labor Law Section 215-a.

2.

Plaintiffs, Latino and African-American minority Police Officers employed by the

New York City Police Department, bring this action against the New York City Police

Department for violations ofthe 1st, 5th and 14th amendments to the United States

Constitution, and for multiple and systemic violations ofNew York State Labor law Section 215-a, and consequent negative employment actions illegally taken against the

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plaintiffs including negative evaluations, lost compensation, lost overtime, lost vacations days earned, punitive postings, punitive transfers, denial of upgrades and promotions, denial of overtime and denial of accrued time earned, and for discrimination in their employment on the basis of race and national origin, as a result of the imposition of illegal quotas and illegal penalties, which imposition has a disparate effect on the African-American and Latino minority police officers, and which discrimination is in violation of 42 U.S.C. §1981, 42 U.S.C. § 1985, the New York State Human Rights Law, New York Executive Law §296 and New York City Local Law 59 of 1986 as amended by Local Rule 39 of 1991, §§ 8-101, et seq. 3. Over the past decade and continuing to the present, the NYPD has pursued an unofficial policy of directing, instructing, compelling and mandating its employees to perform a mandatory number of arrests, issue a mandatory number of summons or write a mandatory number of tickets, (quotas) over a defined period of time, as a performance standard. Failure to meet the quota is punished while employees who meet the quota are rewarded. In the same period of time, the NYPD has stated officially that it does not maintain such quotas. 4. Promotion or job security in the New York City Police Department depends on the number of arrests made or tickets issued. Although the NYPD has continuously denied the existence of quotas and asserts that it relies only on a set of 'productivity goals', or 'performance goals', those phrases are mere euphemisms for a quota system. 5. Despite its official stance against quotas, there is conclusive proof that the NYPD has been using and is still using the quota system. Evidence adduced in the case of Floyd, et al v. The City ofNew York (2013 WL 4046209), a federal class action lawsuit filed

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against the NYPD and the City ofNew York that challenged the NYPD's practices of racial profiling and unconstitutional stop and frisks, showed that 'performance goals' approximated to the appropriate enforcement activity numbers and an officers failure to engage in sufficient proactive enforcement activities resulted in negative performance evaluation and reassignment to a different command. In its ruling, the court stated "it is difficult to see any difference between a perfomance goal and quota" and further stated, "imposing numerical performance goals for enforcement activities, without providing effective safeguards to ensure the activities are legally justified, could result in an officer taking enforcement action for the purpose of meeting a 'performance goal' rather than because a violation of the law has occurred". 6. During testimony in the Floyd case, Police Officer Adhyl Polanco, a named plaintiff in this action, who at the time was an eight-year veteran of the NYPD who worked in the Bronx, testified that he was told at a daily roll call that he had to log at least five stop-and-frisks, make one arrest and write 20 tickets each month. During the same trial, NYPD Officer Pedro Serrano (who is also a named plaintiff in this matter) testified that at roll call, supervisors would urge the gathered officers to make more arrests, make stop and frisk stops and write more summonses. He also testified that when he refused to make the quotas, his superiors punished him by giving him forced overtime on his days off, low performance evaluations and canceling his days off. Tape recordings made by Officer Serrano were introduced into evidence. In those recordings, NYPD Supervisors can be heard stating that they want more stops-and-frisks and arrests and warning the rank and file that if they didn't want to be on a 'foot post' (an undesirable transfer) they needed to make more 'collars' (arrests). At the same hearing, then NYPD

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Deputy Chief Michael Marino, testified that when he was overseeing the 751h precint in Brooklyn, he had to set a goal of 10 summonses and one arrest per month because officers were performing poorly. 7. Plaintiff herein, Officer Polanco has asserted that his command, the 41st Precint, regularly requires officers to make at least "one arrest and twenty summonses" per month. Polanco's assertions were confirmed by an audiotape obtained by the media. The contents of the tape reveal that these quotas are enforced through coercion and threats of job loss; to wit, a patrol supervisor at the 41st Precint is overheard saying: "If you think one and twenty is breaking your balls, guess what you'll be doing. You are going to be doing a lot more, a lot more than what they are saying". The tape also reveals that another patrol supervisor chimed in and told the officers: "next week 25 and one, 35 and one, and until you decide to quit this job and go to work at Pizza Hut, this is what you are going to be doing till then". 8. The New York Daily News obtained and published two internal memos which were posted inside the roll-call room at NYPD's 7ih Precint. The memos specifically instructed officers about the "number of tickets to give drivers for cell phone, seat belt, double-parking, bus stop, tinted windows and truck route violations" that they were expected to issue. The memos remained posted for several weeks inside the roll-call room until the media began inquiring. (James Fanelli, Cops at Brooklyn's crime-ridden 77th Precinct told to meet quotas for moving violations, memos say, N.Y. Daily News, Nov. 8, 2010). 9. Responding to a query from a civilian who was cited on consecutive days in November of 2009 for allegedly occupying more than one seat on the New York City

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subway, the officer responded: "Recently we've been told to write tickets instead of give warnings for this type of thing." The officer explained that they needed to meet quotas. (Tom Namako and Kirsten Fleming, Nightime Riders in Big Sit Fit, The New York Post. December 26, 2009). 10. In December of 2010 and in response to the pressure from their supervisors to issue baseless summonses pursuant to the policy and practice of quotas, police officers at the 79th Precinct considered organizing a so-called "daylong summons boycott." As one officer at the precinct explained, "Nobody feels this is right, asking us to write summonses just to meet a quota." (Rocco Parascandola, Irate cops at the 79th Precinct in Bedford-Stuyvesant threaten boycott over quotas, N.Y. Daily News, Dec. 12, 2010). In response to the planned summons-boycott at the 79th Precinct on December 13, 2010, Deputy Chief Michael Marino marched into the precinct at roll call with a deputy inspector and read officers the riot act. "Just try it," a police source quoted Marino as saying. "I'll come down here and make sure you write them." Marino also vowed to transfer people, like he did when he was the commanding officer of the 75th Precinct in East New York. (Rocco Parascandola, Deputy ChiefMichael Marino threatens cops at the 791h Precinct who want to go on summons strike, N.Y. Daily News December 15, 2010). 11. In the case of Carolyn Bryant v The City ofNew York, (Index Number 22011107Kings County Supreme Court), during the trial of an action for false arrest, malicious prosecution and police brutality brought against the NYPD, and after hearing testimony from Captain Alex Perez of the 81 st Precint of the NYPD to the effect that arrest numbers are a factor in the assessment of police officer performance, a jury in Kings County

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sitting in February 2011, found as a matter of fact that the NYPD has an un-official quota system. The jury verdict was reported in the New York Daily News of February 19, 2011. (Oren Yaniv, Court rules that cops do use quotas; woman injured in 2006 arrest settles for $75,000, N.Y. Daily News. February 19, 2011). 12. In February 2012, NYPD Officer Craig Matthews, filed a lawsuit against the NYPD alleging the use of a detailed quota system at the 42"d Precint, in the Bronx, which includes regular color-coded computer reports used to track compliance with the quotas. Officers who fail to meet the quotas are highlighted in red ink on the reports and subjected to a wide range of retaliatory actions. Officer Matthews alleges that he repeatedly reported the use of the quota system to the Precint's commanding officers and instead of addressing that problem, they retaliated against him by giving him punitive assignments, denying him overtime, denying him leave, giving him poor evaluations and constantly harassing and threatening him. 13. The New York City Office of Collective Bargaining concluded that officers in Brooklyn's 75th Precinct were required to issue four parking tickets, three moving violation citations; three "quality-of-life" summonses, make one arrest and two stop-andfrisks each month. Arbitrator Bonnie Siber Weinstock ruled that the NYPD maintained an illegal "summons quota for traffic violations in the precinct and penalized officers for failing to meet the stated number of traffic citations." She ordered the city to cease and desist from the practice. (New York City Ticket Quota Confirmed, Denied, The Newspaper.Com, January 21, 2006). 14. Kieran Creighton, commander of the NYPD Housing Police Service Area 8 in the northern Bronx, was investigated for ordering officers to make a certain number of arrests

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each month. According to The New York Daily News. The incident allegedly occurred in the spring when Creighton ordered at least eight members of an undercover anti-crime team to a meeting in Pelham Bay Park to berate them about an alleged lack of arrests, sources said. 'You can't make the nine collars a month, then we'll all have to go our separate ways," Creighton told the officers, according to an internal complaint obtained by The News. Anything less than nine arrests would be a "personal slap in the face," Creighton allegedly said. Creighton then told the cops to finagle the times of arrests so any overtime was paid for by a federally funded anti-drug program, the complaint states. Unbeknownst to Creighton, one officer had his NYPD radio switched on so the captain's 10 to 12 minute speech was broadcast to Bronx precincts in Morrisania and Schuylerville and taped by the 911 dispatcher. (Allison Gendar; NYPD captain allegedly caught in arrest quota fixing, The New York Daily News, November 14, 2007). 15. When defendant William Bratton took office as Police Commissioner in January, 2014, he promised an end to quotas and the numbers-driven policing culture championed by his predecessor, Raymond Kelly, stating "I want to focus on the quality of police actions, with less emphasis on our numbers and more emphasis on our actual impact". Mr. Bratton made the statement in an official video released by the NYPD and published on the website of the Patrolmen's Benevolent Association. (Daily News, January 28, 2014: Mark Morales, 'NYPD Commissioner bags bust quotas in favor of actual impact'). However, the reality is that one year later, quotas remain alive and well and the NYPD is aggressively pursuing a numbers driven agenda with regard to arrests, tickets and summonses.

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16. Recently, the New York Post newspaper obtained and reported a text sent by an NYPD Supervisor, Lieutenant Stevelle Brown of the 1051h Precint in Queens, to an officer under her command. The officer had asked for permission to take the night off and Lieutenant Brown responded by asking for details on the officer's 'activity for last month', with the officer answering that it was just 'one moving violation and three parking summonses' Brown responded, "I believe, I will be seeing you at work then". Denying an officer time off for failure to make a certain number of arrests, tickets or summonses is indicative of the fact that the quota system is currently in use. (Shawn Cohen and Bruce Golding; Cop denied time off because of quotas, New York Post, February 20, 2015.)
17. On November 16, 2013, the Daily News reported that four traffic enforcement agents, James Felder, Steven Douglas, Tracy Ellis and Joel Fernandez, along with and their union, Local 983, brought an action against the City and the NYPD alleging that they were being punished by denial of overtime, denial of shifts, denial of meal breaks, being given poor evaluations and threatened with termination, if they failed to tow-away three or four vehicles per shift. The plaintiffs alleged that they were being pressured by supervisors to tow vehicles they wouldn't normally tow in order to meet the quota. (Pete Donohue, Greg B. Smith and Corrine Lestch; "Traffic-enforcement agents sue NYPD, City over towing quotas" Daily News, November 16, 2013). 18. Under the leadership of the named defendants, the named plaintiffs and all unnamed members of the prospective class have been compelled, instructed, directed and or mandated to issue a certain number of summons, write a certain number of tickets, tow a certain number of vehicles, or write a certain number of violations. Similarly, the named

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plaintiffs and all un-named members of the prospective class have been punished by the defendants, by being harassed, threatened with termination and other negative consequences, received negative evaluations, lost compensation, lost overtime, lost vacation days earned, punitive postings, punitive transfers, denial of upgrades and promotions, denial of overtime, and denial of accrued time earned; for their failure to meet the mandated numbers of summonses, tickets, tow-aways, and/or violations. 19. The imposition of illegal quotas has led to a pattern and practice of discrimination against officers of Hispanic and African-American heritage on the basis of color, race and national origin by, inter alia; maintaining and allowing a hostile work environment; disparate treatment through an unfair and unreasonable perfomance evaluation system; unfounded, unwarranted and improperly conducted disciplinary investigations, including integrity tests and interrogations; the imposition of unfounded, unwarranted and overly disciplinary penalties, including but not limited to loss of vacation, suspension, termination, loss of pension, assignments to undesirable and/or particularly dangerous tasks. The disciplinary process of the NYPD, although neutral on its face, has had a disparate impact on minority officers.
20. Upon information and belief, the defendants have enacted and enforced unwritten "productivity standards" or de facto quotas of a certain number of arrests and a certain number of summonses and or violations per month for each NYPD officer. The officers who fail to meet the productivity standards face adverse employment consequences. Upon information and belief, in their efforts to satisfy the productivity standards (meet the quota), NYPD officers have engaged in widespread, suspicion less

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stops and frisks, improper and baseless arrests, and improper and baseless summonses and/or violations.
21. Upon information and belief, the improper stops, frisks, arrests, summonses and violations generated by the pressure to comply with illegal quotas, have a negative impact on the community, and a disparate and disproportionately negative impact on minority African-American and Latino community. Upon information and belief, the NYPD targets black and Iatino communities and black and Iatino individuals within the five boros ofNew York in order to obtain the numbers necessary to meet the illegal quotas. 22. The named plaintiffs herein and the prospective class members are AfricanAmerican and Latino officers who are under supervisory pressure to meet illegal quota standards by performing racially discriminatory and unwarranted enforcement actions against their own minority community. Plaintiff's failure to meet the iHegal quota results in adverse employment consequences including but not limited to negative evaluations, termination or threat of termination, lost compensation, lost overtime, denial of promotions and upgrades, denial of overtime, loss of vacation days earned, loss of accrued time earned, punitive postings and punitive transfers, suspension, investigations, charges, suspensions, formal and informal discipline, assignments to undesirable and/or particularly dangerous tasks, punitive postings and punitive transfers, all leading and contributing to a hostile working environment and racially disparate treatment of the minority police officers.
23. Plaintiffs herein and the prospective class members are disproportionately affected by the imposition of illegal quotas and the punitive consequences ofthe failure to meet the quotas, as opposed to white police officers, because plaintiffs being

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minorities working in neighborhoods dominated by minority residents, are unwilling to perform racially discriminatory and unwarranted enforcement actions against the minority community. The efforts of the defendants to compel plaintiffs to comply with the illegal quota system has led to a racially unfair and unreasonable performance evaluation system and unfair and unwarranted disciplinary actions and penalties to which the plaintiffs are subjected and to which white police officers are not subjected. 24. The named plaintiffs and prospective class members who have complained about the illegal quotas and its racially discriminatory application to the minority community face negative employment action from the defendants in the form of unwarranted and improperly conducted charges and disciplinary investigations, and unwarranted disciplinary penalties leading to a hostile working environment and racially disparate treatment of the minority police officers on the basis oftheir race, color and national origin. 25. The performance evaluation system to which the plaintiffs are subjected by the defendants is unfair in that it is not evenly applied to all precints depending on the location of the precint. For instance, under the numbers determined performance evaluation system, a police officer from a precint located in a predominantly white residential area will receive a positive evaluation while a police officer from a precint located in a predominantly minority area will receive a negative evaluation for the same exact number of enforcement actions. 26. The performance evaluation system to which the plaintiffs are subjected by the defendants although neutral on its face, is un-evenly applied in that minority officers are

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more likely to be charged, investigated and receive more punishment, than their white counterparts for the same alleged offenses.
JURISDICTION 27. Jurisdiction is conferred upon the Court pursuant to 28 U.S.C. §§ 1331 and 13343 (3) & (4) as this action seeks redress for the violation of plaintiffs civil rights. Plaintiffs further invoke the Court's supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a) over any and all state law claims that are so related to the claims within the original jurisdiction of the Court that they form part of the same case or controversy. Plaintiff's claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure.
VENUE 28. Venue is proper in the United District Court for the Southern District ofNew York pursuant to 28 U.S.C. §§ 1391 (b) and (c).
JURY DEMAND 29. Plaintiffs demand trial by jury in this action and on each and every one of their claims.
PARTIES 30. Plaintiff Edreweene Raymond is an African American male Police Officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered negative employment consequences as a result of the failure to meet the illegal quotas; has been racially discriminated against in the imposition of

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command disciplines for failing to meet the illegal quota; Has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech; and has been penalized for reporting, opposing and complaining about the illegal quotas and its racially discriminatory application against the minority community. 31. Plaintiff Adhyl Polanco is a Hispanic male and police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech; has been compelled to work forced overtime, and has been penalized for reporting, opposing and complaining about the illegal quotas and its racially discriminatory application against the minority community
32. Pedro Serrano is a Hispanic male and a police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered negative employment consequences as a result of the failure to meet the illegal quota; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; Has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 33. Sandy Gonzalez is a Hispanic male and a police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered

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negative employment consequences as a result of the failure to meet the illegal quota; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community 34. Plaintiff Ritchie Baez is a black male of Hispanic heritage and a police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of the failure to meet the illegal quotas; has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 35. Plaintiff Julio Diaz is a Hispanic male and police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community.
36. Plaintiff Felicia Whitely is a female African American Police Officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for

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failing to meet the illegal quota; has suffered negative employment consequences as a result of the failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 37. Plaintiff Roman Goris is a Hispanic male and police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 38. Plaintiff Derick Waller is an African American male police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has expressed his opposition to the illegal quotas and has been retaliated against in violation of his right to free speech; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 39. PlaintiffKareem Abdullah is an African American male police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a

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result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 40. PlaintiffOlayokun Olagoke is an African American male police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 41. Plaintiff Widmarc Pierre is an African American male police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community 42. Defendant the City ofNew York (the City) is and was at all times relevant hereto, a municipal corporation duly organized and existing under the laws of the State ofNew York, exercising governmental authority. Defendant is an employer subject to Federal Laws and to the New York State Human Rights Law and New York City Local Law. Defendant City is a person for purposes of 42 U.S.C. §§ 1981 and 1985 and is and was

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the employer of the named plaintiffs and prospective class members as well as the individually named defendants, at all relevant times. 43. Defendant the New York City Police Department (NYPD) was and is a department, agency, bureau and /or subdivision of the Defendant City. Defendant NYPD is and was at all times relevant hereto, a local government agency of the City of New York and was or is the employer of all the individually named plaintiffs, the prospective class members and the individual defendants herein. 44. Defendant Bill DeBlasio is the Mayor of the City ofNew York. Upon information and belief, Defendant De Blasio has routinely met with the Police Commissioner; Deputy Police Commissioners and other high ranking members of the NYPD to set policy and make recommendations relating to the polices, administration, practices, customs and procedure of the NYPD and relating to the disciplinary system and implementation of penalties within the NYPD. Defendant DeBlasio knew or should have known of the customs, practices and policies described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the plaintiffs, and Mayor DeBlasio condoned, ratified and/or authorized such practices and policies.
45. Defendant William J. Bratton has been the Police Commissioner for the City of New York from January 2014 to the present. Defendant Bratton is an employee ofthe City of New York and is the principal administrator of defendant NYPD. He is responsible for the application of the NYPD's enforcement and administrative polices including its internal investigatory and disciplinary process. He is the final authority in all

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disciplinary matters within the NYPD. Police Commissioner William J. Bratton knew or should have known of the customs and practices described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the plaintiffs and Commissioner Bratton condoned, ratified and/or authorized such conduct.
46. Defendant James P. O'Neill is the NYPD's ChiefofDepartment and the highest ranking non-civilian police uniformed police officer. Defendant O'Neill is an employee ofthe City ofNew York. Upon information and belief, he is in charge of all NYPD operations answering only to the Police Commissioner and the Mayor. Defendant O'Neill, knew or should have known ofthe customs and practices described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the plaintiffs and Commissioner Bratton condoned, ratified and/or authorized such conduct. 47. Defendant NYPD Patrol Bureau Chief Carlos M. Gomez is the NYPD's commanding officer of patrol services, which includes the precints. Defendant Gomez exercised supervisory control over the plaintiffs at all relevant times and participated in making and executing the policy and practices complained of herein. Defendant Gomez, knew or should have known of the customs and practices described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers

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including the plaintiffs and defendant Gomez condoned, ratified and/or authorized such conduct.
STATEMENT OF FACTS (Experiences of the named plaintiffs)
48. PlaintiffEdreweene Raymond is a police officer in the NYPD's Transit District. He was inducted in to the force in 2008. During his first year, he was told by his Supervisors at Transit District 32, in Crown Heights, Brooklyn, that his core duty was to get as many arrests as possible and issue as many summons as possible in order to make the quota. After seven months on the job, he complained to his superiors about this requirement. He requested of his Sergeant that he be allowed to use his discretion and that he be excused from the quota. His request was denied. In 2010, for his lack of activity, an epheumism for not meeting the quota, he was given a punitive posting, the Coney Island Summer detail. As further punishment, he was posted to the midnight shift. On the mid-night shift, he was again given a quota and told by his superiors to make the quota. He was directed to make the quota by arresting people on the train at night for occupying more than one seat. He refused to do this and again failed to make the quota. He was chastised by his supervisors and told that his numbers were too low and he needed to make the numbers just like everyone else or be punished and possibly fired. In 2012, he was transferred out ofthe a Special Operations Unit because of not getting enough arrests to meet the quota, and told "to be in this unit, you have to produce the required numbers". Since 2012, he has been posted to the 3rd Platoon of the Transit District, and for not making the quota and for complaining about it, he has received below par evaluations and his superiors have threatened to place him on performance

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monitoring. Although Officer Raymond is an excellent candidate for promotion to the rank of sergeant, and scored 93 in the qualifying examination, thus ranking him number gth out of the 932 individuals who took the same examination, he has been threatened by his superiors that unless he increases the number of arrests and summons issued, he wi11 not be promoted to the rank of sergeant. In July 2014, Officer Raymond wrote a memo to the Commanding Officer of Collaborative Initiatives, complaining about the strong pressure to increase arrests for low-level transit crimes and detailing his personal experience with this pressure. 49. As a police officer within the Transit District, Officer Raymond was and is required by his supervisors to meet a quota of 1 arrest and 5 summons a month. Officer Raymond is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against the low-income minority riders of the public transit system.
50. For not meeting the quota, plaintiff Raymond was penalized by punitive postings, low performance evaluations, denial of upgrades and promotions, denial of overtime, and denial of time off. His supervisors threatened to place him on performance monitoring and he was denied promotion that he qualified for. 51. For complaining about the quota and expressing his opinion about it, Officer Raymond was penalized by punitive postings, low performance evaluations, denial of overtime, and denial of time off. His supervisors threatened to place him on performance monitoring and he was denied promotion. 52. Plaintiff Sandy Gonzalez is a police officer within the NYPD' s 401h precint. Plaintiff Gonzalez was and is required by his precint commander and other superiors to

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meet a quota of one arrest and twenty summons per month. Plaintiff Gonzalez was unwilling to meet the quota because he believed that it was unfair, unreasonable, and racially discriminatory against residents of the south Bronx. In 2013, he was penalized for not meeting the quota by being given a low evaluation score of2.5. He was also penalized by being forced to work, alone, on a fixed post in cold weather at a dangerous location at a time when the NYPD directives were for all patrolmen to have partners. During this posting, plaintiff Gonzalez fell and suffered injury and reported it to his superiors. For not writing enough summons, plaintiff Gonzalez was threatened with negative evaluations and chastised by his precint commander, Deputy Inspector Christopher McCormack, who stated "on 1281h Street, you can write 100 C summons, any day". ('C' is for criminal).
53. For not meeting the quota, plaintiff Gonzalez was penalized by punitive postings, low performance evaluations, denial of overtime, forced overtime and denial of time off. He was placed on performance monitoring, which could have led to termination. 54. Plaintiff Gonzalez made a formal complaint to his superiors and to the Internal Affairs Bureau ofthe NYPD regarding the imposition of the illegal quota. His superiors retaliated with threats and attempts to humiliate Mr. Gonzalez verbally and by instituting an un-warranted investigation against him regarding his fall. A white police officer who fell under the same circumstances as plaintiff Gonzalez, was not investigated. 55. Plaintiff Ritchie Baez was employed by the NYPD as a police officer in 2004. He was posted to the 401h precint in 2005 and remains there till today. In 2013, plaintiffBaez was required by his precint commander and other superiors to meet a quota of one arrest and twenty summons per month. Plaintiff Baez was unwilling to meet the quota because

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he believed that it was unfair, unreasonable, and racially discriminatory against residents of the south Bronx. Plaintiff did not meet the quota in 20 13. Plaintiff Baez was penalized for not meeting the quota by being given a low performance evaluation of2.5. In the year that he received the low evaluation of2.5, plaintiff Ritchie Baez performed great police work in three instances; In May 2013, Officer Baez assisted a citizen of Spanish descent whose car had been stolen. Officer Baez used his knowledge of Spanish to interview the victim and realizing that time was of the essence, quickly performed a canvass of the immediate neighborhood for the missing vehicle with the result that he immediately found the stolen vehicle and arrested the perpetrator who was charged with Grand Larceny Auto; in October 2013, Officer Baez was helping Housing police provide crowd control duties at 152nd Street, when he recognized a face in the crowd as an accused robber from a wanted poster. During the robbery, the suspect was accused of slashing her victim several times in the face. Acting quickly, Officer Baez promptly apprehended and arrested the suspect; The same year, Officer Baez was assisting a Special Operations Unit during an automobile stop. He observed an individual being interrogated by the Sergeant of the Special Operations Unit. Officer Baez realized that he had seen this individual on a wanted poster as a known gang member being sought by the police. When the individual gave a fictitious name to the Sergeant, Officer Baez alerted the Sergeant and was proven correct by a check of the NYPD records, leading to the arrest of the wanted individual. Despite the above, Plaintiff Baez was given a low performance evaluation in 2013 because his arrest and summons numbers did not meet the quota. 56. For not meeting the quota, plaintiffBaez was penalized by punitive postings, low performance evaluations, denial of overtime, forced overtime and denial of time off. He

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was placed on performance monitoring, which could have led to termination. He was posted to the sky watch posting, which was used by his superiors at the precint, solely as a punitive posting. 57. PlaintiffBaez complained to his superiors about the imposition of illegal quotas and the penalties for not meeting the quota, to no avail. 58. Plaintiff Adhyl Polanco was employed by the NYPD as a police officer in 2005. He was posted to the 41 51 Precint in 2005. His supervisors required him to meet a quota of one arrest and twenty summons per month. Plaintiff Polanco was unwilling to meet the quota because he believed that it was unfair, unreasonable and racially discriminatory against the minority community. Plaintiff complained about the quota system and expressed his unwillingness to comply with it. Plaintiff Polanco was penalized for not meeting the quota with low performance evaluations, punitive postings, denial of time off, denial of overtime, punitive transfers and forced overtime. 59. NYPD supervisors at the 41st Precint enforced the quotas through coercion and threats ofjob loss. A supervisor was recorded saying about the quota "If you think one and twenty is breaking your balls, guess what you'll be doing. You are going to be doing a lot more, a lot more than what they are saying". Another supervisor then stated: "next week 25 and one, 35 and one, and until you decide to quit this job and go to work at Pizza Hut, this is what you are going to be doing till then". Officer Polanco recorded these comments.
60. Officer Polanco spoke out publicly about the NYPD's maintenance of the quota system, and in 2009, testified in the Floyd case (federal class action law suit regarding unconstitutional "stop and frisks" by the NYPD. The defendants have punished Officer

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Polanco with unwarranted and improperly conducted disciplinary investigations, including integrity tests and interrogations, and imposed unfounded, unwarranted and overly disciplinary penalties including, loss of vacation and suspension. 61. Plaintiff Pedro Serrano is a police officer who was posted to the 40th precint in 2005 and remains there till date. Officer Serrano's supervisors at the 40 precint required and require him to write at least 20 summons and perform one arrest per month. Plaintiff Serrano is unwilling to meet the quota because he believes it to be unfair, unreasonable and racially discriminatory against the minority community. Plaintiff Serrano complained to his supervisors about the quota and failed to maintain the numbers required of him. As a consequence, his supervisors threatened him with negative consequences such as forced overtime on his weekends off, punitive postings, and then carried out those threats. 62. Plaintiff Serrano experienced first hand the negative effect of the quotas imposed by his supervisors on the minority community where he patrolled in the South Bronx. For his failure to meet the quota, he received a negative performance evaluation. One of his supervisors Executive Officer Materasso, told him that in order for him to get a better evaluation, he must arrest, summon and stop and frisk more people. Plaintiff Serrano explained to Officer Materasso, the deputy commandant of the 40th precint, that the residents of the 40th precint are predominantly low income and that he did not feel right about giving them spurious summons. She disagreed and referred to the residents of the 40th precint as "animals". Plaintiff Serrano, of Puerto Rican origin similar to many residents of the South Bronx, was deeply offended. 63. In the spring of2012, while driving by Beekman Avenue and East 141 street, the commandant of the 40th precint, defendant Christopher McCormack, saw a black person

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standing against the wall. In the presence of plaintiff Serrano, Inspector McCormack got out of his car and walked up to this individual and proceeded to open the black man's pants. He opened the man's zipper, pulled down the man's pants and exposed the man's penis. He then grabbed the man's penis and passed his hands between the man's butt cheeks. Defendant McCormack then pulled out some narcotics and gave it to his driver. Upon information and belief, Defendant McCormack conducted himself in a similar manner at other times. Plaintiff Serrano was offended by this conduct. 64. Plaintiff Serrano reported the illegal quotas and the harassment received from his superiors for not meeting the quotas, to the Internal Affairs Bureau of the NYPD but nothing was done about it. Plaintiff Serrano also testified in the Floyd federal class action lawsuit regarding the use of illegal quotas within his precint. As punishment, he has received low performance evaluations, forced overtime, cancelled time off, threats of termination and punitive postings. 65. Plaintiff Roman Goris is a police officer within the NYPD's 7ih precint. Plaintiff Goris was and is required by his precint commander and other superiors to meet a quota of one arrest and twenty summons per month. Plaintiff Goris is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against the minority residents of Brooklyn. Police Officer Goris believes that the quota system implemented by the Police Department is the main reason for the public's hostility towards police officers and that police officers should be allowed to use their discretion on a case by case basis. 66. For not meeting the quota, plaintiff Goris was penalized by punitive postings, low performance evaluations, denial of overtime and denial of time off.

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67. Plaintiff Julio Diaz is a police officer within the NYPD's 751hprecint. Plaintiff Diaz was and is required by his precint commander and other superiors to meet a quota of one arrest and twenty summons per month. Plaintiff Diaz is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against minority residents of the city of Brooklyn. 68. For not meeting the quota, plaintiffDiaz was penalized by punitive postings, low performance evaluations, denial of overtime, denial ofupgrades or promotions, forced overtime and denial of time off. He was placed on performance monitoring, which could have led to termination. 69. Plaintiff Derrick Waller was employed by the NYPD as a police officer in 1995. He is currently a police officer assigned to the 77'h precint in Brooklyn. Officer Waller is required by his precint commander and other superiors to meet a quota of one arrest and thirty summons per month. Such quotas were posted on the bulletin boards of the 77'h precint and officers who failed to meet the quota, including officer Waller, were identified on an list issued by Deputy Inspector Elvio Capocci, and threatened with disciplinary actions for failing to comply. Plaintiff Waller is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against minority residents of the City of Brooklyn. From 2006 to the present, plaintiff Waller has been under intense pressure by numerous members ofthe NYPD supervisory echelon to increase C summons, arrests and UF-250's (stops and frisks). Officer Waller on one occasion was told by a Sgt. Anthony Laroche of the performance monitoring division to "pick any dude walking across the street with his pants hanging down, underwear showing and write a jay walking summons" and "just write the damn summonses".

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70. For not meeting the quota, complaining about the quota, and expressing his opposition to the iiiegal quota, plaintiffWaiier was penalized by punitive postings, low performance evaluations, denial of overtime, and denial of time off. He was placed on performance monitoring, which could have led to termination. He was posted to the sky watch posting, which was used by his superiors at the precint, solely as a punitive posting.
71. Plaintiff Waller complained to his supervisors within the NYPD including Lt. David Wittman, Inspector Cappocci and Lt. Cotton, on several occasions regarding the quota and the unfair punishment for not meeting the quota, to no avail. Officer Waller has been punished further by being excluded from any off duty employment which other officers are routinely aiiowed to engage in and being excluded from spike overtime, taken out of a squad patrol vehicle and assigned to foot posts although he is the most senior officer in his squad, and given steady tours of Skywatch, a solely punitive posting. 72. PlaintiffKareem Abduiiah is a police officer within the NYPD's 43rd precint. Officer Abduiiah joined the force in 1993 and was posted to Transit District 11. While there, plaintiff Abduiiah was required by his superiors to meet a quota of one arrest and twenty summonses a month, or one arrest and then summonses for those on the midnights shift. Plaintiff Abduiiah was unwiiiing to meet the quota because he believed that it was unfair, unreasonable, and racially discriminatory against minority residents of the Bronx. For not making the quota, "refusing to arrest people solely to make up the numbers" he was transferred the 43rd precint and placed on performance monitoring. He was told by his superiors that in order to be relieved from performance monitoring, he had to make two or three arrests a month at least. At the 43rd Precint, the quota that

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officer Abdullah currently has to meet is one arrest and ten summonses a month, although this is less rigorous than the quota imposed at the Transit District, it is still strictly enforced. 73. For not meeting the quota, plaintiff Abdullah was penalized by punitive postings, low performance evaluations, denial of overtime, and denial of time off. He was placed on performance monitoring, which can lead to termination. 74. Plaintiff Abdullah made a formal complaint to his PBA delegate and via his PBA delegate to his superiors at One Police Plaza regarding the quota imposition and his punishment for not meeting the quota. He has received no response. 75. PlaintiffOlayokun Olagoke is a police officer within the NYPD's 66th Precint. Officer Olagoke joined the force in 2008. As a minority black officer in a mostly white squad, plaintiff Olagoke was disproportionately punished for not meeting the quota while white police officers, who also failed to meet the quota, received less or no punishment. At the 66th Precint, plaintiffOlagoke is required to meet a quota often A summons, one B summons, one C summons (16 summons) and one arrest per month. PlaintiffOlagoke is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against minority residents of Brooklyn. 76. For not meeting the quota, plaintiff Olagoke was penalized by punitive postings, a punitive transfer, low performance evaluations, denial of overtime, and denial of time off. He was also suspended from paid detail. 77. PlaintiffOlagoke made a formal complaint to his union representative and his commanding officer regarding the quota and his unfair punishment for failing to meet it and was told that he should bring his numbers up if he wants to escape punishment. In

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retaliation for his complaints, plaintiff Olagoke was subjected to a hostile work environment wherein his Sergeant, Joe Chen, subjected him to verbal humiliation, at one time ordering him not to speak on the squad car radio, calling him "stupid" and a "moron" and threatening to and putting him on a punitive post at the boardwalk. 78. Plaintiff Felicia Whitely is a police officer in the NYPD's Housing Burea, PSA 1 charged with patrolling the New York City Housing Developments. Officer Whitely is required to meet a quota of one arrest and five C summons every month. Plaintiff Whitely is unwilling to meet the quota because she believes that is is unfair, unreasonable, and racially discriminatory against minority residents of Brooklyn. 79. For not meeting the quota, plaintiff Whitely was penalized by punitive postings, a punitive transfer, low performance evaluations, denial of overtime, and denial of time off. Plaintiff Whitely was banned from overtime and from paid detail as a result ofher inability to meet the quota. 80. Plaintiff Whitely has complained about the foregoing to her platoon commander, her union delegate, and her supervisor, to no avail. 81. Plaintiff Widmarc Pierre is a police officer assigned to the NYPD' s 66th Precint located in Brooklyn. As an officer in the 66th precint Officer Widmarc is required to meet a quota of ten A summons, one B summons, one C summons (16 summons) and one arrest per month. Plaintiff Widmarc is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against minority residents of Brooklyn. 82. For not meeting the quota, plaintiffWidmarc was penalized by punitive postings, a punitive transfer, low performance evaluations, denial of overtime, and denial of time

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off. Plaintiff Widmarc was told by his superiors that he received a sub-par evaluation because he did not have enough stop and frisks and did not write enough C summonses..
CLASS ACTION ALLEGATIONS 83. Plaintiffs bring this action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure on their own behalf and on behalf of all other persons similarly situated. 84. Plaintiffs class consists of all Hispanic and African-American police officers who are being compelled and pressured to meet illegal quota numbers in the issuance of summonses, in the stop and or frisks of citizens and in the arrest of citizens, within the minority communities targeted by the NYPD, who have been penalized with negative employment consequences for not meeting said quotas, who have been penalized by being forced to work overtime on their time off, and who, upon information and belief, have been subjected to discrimination on the basis of color, race or national origin in the form of a hostile work environment, disparate performance evaluation treatment, and disparate disciplinary treatment for having challenged the illegal quota system in the department. Plaintifrs claims are typical of the claims of the other members of the class as they have all been forced, pressured and compelled to meet illegal quotas, have suffered negative employment consequences for not meeting the illegal quotas, and have suffered disparate performance evaluations and disparate disciplinary treatment for their failure to meet the desired quota numbers. Plaintifrs attorneys are qualified and generally able, with extensive experience in employment litigation. For these reasons, plaintiffs

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will fairly and adequately protect the interests of the class in this action for declaratory and injunctive relief and for compensatory and punitive damages. 85. The members of this class are too numerous to be joined in one action. Upon information and belief, there are approximately 6000 Hispanic and 5000 AfricanAmerican police officers who will have been and will be affected by the imposition of the illegal quota system, the negative employment consequences of not meeting the illegal quota system, the imposition of forced overtime on their time off, disparate performance evaluations and disparate disciplinary actions for failure to meet the illegal quota numbers. Upon information and belief, thousands of these officers have already been subjected to the said unlawful conditions. 86. The questions of law common to the above described class is whether or not the City ofNew York through the NYPD, compels police officers to comply with illegal quotas in the performance of arrests, stops and or stop and frisks, and the writing of summonses and tickets and in the performance of their duties contrary to New York State Labor Law§ 215-a; whether the City ofNew York through the NYPD, penalizes police officers for failing to comply with illegal quotas contrary to New York State Labor Law § 215-a; whether as a result of being forced to meet illegal quota numbers in their own minority neighborhoods, the plaintiffs have suffered racially disparate performance evaluations and racially disparate disciplinary treatment and whether such conduct by the defendants constitute a deprivation of the rights conferred on the plaintiffs by the Civil Rights Act of 1866,42 U.S.C. § 1981,42 U.S.C. §1985, the New York State Human Rights Law, New York Executive Law §296; New York City Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§8-101, et seq.

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87. Plaintiffs and members of their class meet the requirements of Rule 23(a) ofthe Federal Rules of Civil Procedure (F.R.C.P.).889. The defendants have acted or refused to act, on grounds generally applicable to the class, thereby making appropriate injunctive relief and declaratory relief with respect to the class as a whole, meeting the requirements of Rule 23(b)(2) of the FRCP.
FACTUAL BACKGROUND COMMON TO ALL CLAIMS FOR RELIEF
88. Section 215-a ofNew York State's Labor Law prohibits employers from requiring quotas in the issuance of summons, tickets or number of arrests, and also prohibits employers from penalizing employees for not meeting such illegal quotas or measuring an employee productivity by a failure to meet a quota. Section 215 of the Labor Law further prohibits employers from penalizing employees for reporting or complaining about the employer's violation ofthe Labor Law. In direct violation of these provisions, under the leadership of the named defendants, the named plaintiffs and all unnamed members of the prospective class have been compelled, instructed, directed and or mandated to perform a certain number of arrests, perform a certain number of stops and or stop and frisks, and issue a certain number of summons, per month. Similarly, the named plaintiffs and members of the prospective class have been punished by the defendants, by being harassed, threatened with termination and other negative consequences, received negative evaluations, lost compensation, lost overtime, lost vacation days earned, punitive postings, punitive transfers, denial of upgrades and promotions, denial of overtime, and denial of accrued ti~e earned, for failure to meet the

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mandated numbers of arrests, stop and or stop and frisks, and the mandated number of summons. 89. The illegal quota system is used in every work operational unit or sub-unit of the NYPD throughout the five boros ofNew York and affects all police officers who have to comply or face punitive consequences. 90. The named plaintiffs and all members of the prospective class have suffered actual damages by being harassed, threatened with termination, given negative evaluations, lost compensation, lost overtime, lost vacation days earned, lost time off, denial of overtime, denial of upgrades, denial of promotions, punitive postings and punitive transfers, all for failure to meet the mandated quota of arrests, stops and summons. 91. The named plaintiffs and all members of the prospective class have been subjected to disparate and racially discriminatory performance evaluations by the defendants as a means of compelling the Latino and African-American plaintiffs to enforce racially discriminatory quotas in the predominantly minority communities targeted by the NYPD. 92. The named plaintiffs and all members of the prospective class have been subjected to disparate and racially discriminatory disciplinary treatment by the defendants as a means of compelling the Latino and African-American Plaintiffs to enforce racially discriminatory quotas in the predominantly minority communities targeted by the NYPD.

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1sT CAUSE OF ACTION AGAINST ALL (Claims of named plaintiffs and class members

DEFENDANTS for illegal quotas

and

penalties imposed on the plaintiffs contrary to Labor Law § 215-a)

93. The allegations in paragraphs 1 through 92 above are incorporated herein as if

fully set forth below.

94. The defendant the City of New York, by its police department, the defendant NYPD, and through its agents, the named individual defendants, and the individual defendants in their personal and official capacities, have compelled, instructed, directed and mandated the plaintiffs to perform a certain number of arrests, perform a certain number of stops and stop and frisks, and issue a certain number of summons, per month. In other words, the defendants have maintained an illegal quota system for police officers for arrests and summonses, and in measuring the productivity of the plaintiffs. 95. That the defendant, the City of New York, by its Police Department, the defendant, NYPD, and through its agents and employees, the named individual defendants and the individual defendants in their personal and official capacities, have penalized the plaintiffs for failure to meet the illegal quotas by threatening the plaintiffs with termination, giving the plaintiffs negative evaluations, denying the plaintiffs compensation, denying the plaintiffs overtime, denying the plaintiffs vacation days earned, denying the plaintiffs time off, denying the plaintiffs overtime, denying the plaintiffs upgrades, denying the plaintiffs promotions, subjecting the plaintiffs to punitive postings and punitive transfers, and otherwise illegally punishing the plaintiffs by subjecting the plaintiffs to negative employment conditions for failure to meet the illegal quota.

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96. That the defendants actions in maintaining the quota and penalizing the plaintiffs for failing to meet the quota are prohibited by New York State Labor Law, Section 215-a. 97. That the named plaintiffs and prospective class members have suffered damages as a result of the imposition of the illegal quotas and the punitive actions taken against them for failure to meet the illegal quotas.
2ND CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members against all defendants for racially discriminatory employment practices in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981) 98. The allegations in paragraphs 1 through 97 above are incorporated herein as if fully set forth below. 99. The named plaintiffs and members of the prospective class are Hispanic and African-American police officers patrolling in areas where the residents are predominantly minorities as in Latino and African-American. 100. The illegal quota system maintained by the defendants has a negative effect on the community as it leads to unreasonable and un-warranted arrests, stops, stop and frisks, and summonses. 101. The illegal quota system implemented by the defendants has a disproportionate and racially discriminatory effect on the minority community because the NYPD targets the minority community to obtain the numbers required by the quota system. 102. The named plaintiffs and members of the prospective class are unwilling and unable to meet and enforce the illegal quotas on their own minority communities due to its racially discriminatory nature and the fact that it leads to unfair, unreasonable and unwarranted enforcement actions against their own minority community.

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103. The named plaintiffs and all members of the prospective class have been subjected to disparate and racially discriminatory performance evaluations by the defendants as a means of compelling the Latino and African-American plaintiffs to enforce racially discriminatory quotas in the predominantly minority communities targeted by the NYPD. 104. The named plaintiffs and all members of the prospective class have been subjected to disparate and racially discriminatory performance evaluations by the defendants as a means of compelling the Latino and African-American plaintiffs to enforce racially discriminatory quotas in the predominantly minority communities targeted by the NYPD. 105. The racially disparate performance evaluations and the racially disparate disciplinary actions to which the plaintiffs have been subjected to constitute a deprivation of the rights conferred on the plaintiffs by the Civil Rights Act of 1866, 42 U.S.C. § 1981. Section 1981 provides in pertinent part that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts.....and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens". 106. A contract of employment exists between each of the plaintiffs and defendants NYPD and the City of New York, in that the NYPD and each plaintiff agreed that each plaintiff would be hired by the department to work for it in a specific position described in the complaint, at a specific average rate, for an indefinite period of time. 107. Defendants actions as set forth herein prevented plaintiffs and prospective class members from enjoying and enforcing their employment contract rights on the same basis

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as white persons, thereby denying said rights in violation of the Civil Rights Act of 1866, 42 U.S.C. Section 1981, as amended. 108. Defendants actions had both the intention and effect of depriving plaintiffs of the rights and benefits of their contractual relationship with the Department on the basis of their race, color and or national origin. 109. The named plaintiffs and members ofthe prospective class have suffered damages as a result of such deprivation including but not limited to loss of promotions and upgrades, loss of earned time off, punitive postings, punitive transfers, and the plaintiffs and class members have suffered distress, humiliation, great expense, embarrassment and damage to their reputations. 110. The actions of defendants in depriving plaintiffs of their civil rights as hereinbefore stated, were willful and malicious. As a result of Defendant's reckless and intentional acts, plaintiff and members of their class are entitled to compensatory damages and punitive damages in an amount to be determined at trial.
3RD CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members against all defendants for racially discriminatory employment practices in violation of 42 U.S.C. §1985 and §1986) 111. The allegations in paragraphs 1 through 110 above are incorporated herein as if fully set forth below. 112. Upon information and belief, Defendants have and continue to conspire with and amongst each other to deny plaintiffs and members of their class the rights, privileges and immunities, and the equal protection of the laws to which they are entitled under the constitution and laws of the United States in violation of 42 U.S.C. Section 1985.

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113. As a direct result of this conspiracy, the defendants injured plaintiffs and deprived them of having and exercising their rights and privileges under the Constitution and laws ofthe United States. 114. The actions and omissions of Defendants described herein were willful and malicious and based upon invidious racial and class based animus. The purpose of the aforementioned conspiracy was to violate the civil rights of the plaintiffs and as such, violated 42 U.S.C. Section 1985. 115. All of the individual defendants, as public officials, had notice of the conspiracy set forth above, in violation of Section 1985 and failed and refused to prevent, prohibit and ameliorate the aforementioned conspiracies notwithstanding their abilities to do so. Said failure and/or refusal to prevent, prohibit and/or ameliorate constituted a violation of
42 u.s.c. § 1986.
116. The actions of Defendants, in depriving plaintiffs of their constitutional and Civil Rights as hereinbefore stated, were willful and malicious. As a result of Defendants reckless and intentional acts, plaintiffs and members of their class are entitled to compensatory damages and punitive damages in an amount to be determined at trial.
4TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members against all defendants for racially discriminatory employment practices in violation of New York State Human Rights Law, New York Executive Law §290) 117. The allegations in paragraphs 1 through 116 above are incorporated herein as if fully set forth below.

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118. This claim is brought pursuant to the supplemental jurisdiction of the Court, under New York State Human Rights Law, Executive Law§§ 290 et seq. 119. Executive Law §290 provides in pertinent part that "the opportunity to obtain employment without discrimination because of race or national origin is hereby recognized as and declared to be a civil right". Executive Law§ 296 provides in part as follows "it shall be an unlawful discriminatory practice for an employer ..... because of an individual's age, race, creed, color, national origin.... to discriminate against such individual in compensation or in terms, conditions or privileges of employment." 120. Plaintiffs are members of a protected class as defined by New York Executive Law §296. 121. The named plaintiffs and members of the prospective class are Hispanic and African-American police officers patrolling in areas where the residents are predominantly minorities as in Latino and African-American. 122. The illegal quota system maintained by the defendants has a negative effect on the community as it leads to unreasonable and un-warranted arrests, stops, stop and frisks, and summonses. 123. The illegal quota system implemented by the defendants has a disproportionate and racially discriminatory effect on the minority community because the NYPD targets the minority community to obtain the numbers required by the quota system. 124. The named plaintiffs and members of the prospective class are unwilling and unable to meet and enforce the illegal quotas on their own minority communities due to its racially discriminatory nature and the fact that it leads to unfair, unreasonable and unwarranted enforcement actions against their own minority community.

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125. The named plaintiffs and all members of the prospective class have been subjected to disparate and racially discriminatory performance evaluations by the defendants as a means of compelling the Latino and African-American plaintiffs to enforce racially discriminatory quotas in the predominantly minority communities targeted by the NYPD. 126. The named plaintiffs and all members of the prospective class have been subjected to disparate and racially discriminatory performance evaluations by the defendants as a means of compelling the Latino and African-American plaintiffs to enforce racially discriminatory quotas in the predominantly minority communities targeted by the NYPD. 127. The racially disparate performance evaluations and the racially disparate disciplinary actions to which the plaintiffs have been subjected to constitute unlawful discrimination on the basis of race and national origin in the compensation, terms, conditions or privileges of employment contrary to the New York State Human Rights Law, New York Executive Law §296. 128. The named plaintiffs and members ofthe prospective class have suffered damages as a result of such deprivation. 129. Plaintiffs and members of the class they represent have suffered and will continue to suffer irreparable injury caused by defendant's illegal conduct. 130. As a direct and proximate result of defendant's unlawful acts, plaintiffs and members of the class they represent have suffered and will continue to suffer loss income, loss of upgrades and promotions, loss of time earned, forced overtime during scheduled time off, loss of earned time off, and loss of other employment benefits and

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plaintiffs have suffered and continue to suffer distress, humiliation, great expense, embarrassment and damage to their reputations. 131. The actions of the defendants in depriving plaintiffs and members of the class they represent of their constitutional and civil rights as hereinbefore stated, were willful and malicious. As a result of defendants reckless and intentional acts, plaintiffs and members of their class are entitled to compensatory and punitive damages in an amount to be determined at trial.
5TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members against all defendants for racially discriminatory employment practices in violation of New York City Human Rights Laws) 132. The allegations in paragraphs 1 through 131 above are incorporated herein as if fully set forth below. 133. Defendants NYPD and the City ofNew York as employers, pursuant to New York City Human Rights Law, have unlawfully discriminated against plaintiffs and members of the class they represent because of their race and national origin in the terms, conditions, and privileges of employment and have penalized and disciplined and otherwise taken adverse action against Plaintiffs in violation ofNew York City Local Law 59 of 1986 as amended by Local Rule 39 of 1991, §8-207. 134. Plaintiffs have served a copy of this complaint upon the New York City Commission of Human Rights and the New York City Corporation Counsel. 135. Plaintiffs and members of the class they represent have suffered and will continue to suffer irreparable injury caused by defendant's illegal conduct.

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136. As a direct and proximate result of defendant's unlawful acts, plaintiffs and members of the class they represent have suffered and will continue to suffer loss income, loss of upgrades and promotions, loss of time earned, forced overtime during scheduled time off, loss of earned time off, and loss of other employment benefits and plaintiffs have suffered and continue to suffer distress, humiliation, great expense, embarrassment and damage to their reputations. 137. The actions of the defendants in depriving plaintiffs and members ofthe class they represent of their constitutional and civil rights as hereinbefore stated, were willful and malicious. As a result of defendant's reckless and intentional acts, plaintiffs and members of their class are entitled to compensatory and punitive damages in an amount to be determined at trial.
6TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claim of Edreweene Raymond, against all defendants for violation of his first amendment rights to free expression) 138. Defendants have violated the rights ofPlaintiffEdreweene Raymond under the First Amendment to the United States Constitution and 42 U.S.C. §1983. 139. As a result of this violation, plaintiffs Edreween Raymond is entitled to a declaration that his first amendment rights were violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorney's fees.

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7TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claim of named plaintiff Edreweene Raymond against all defendants for violation of their right to free speech under Article 1, §8 of the New York State Constitution) 140. Defendants have violated the rights of plaintiff Edreweene Raymond under Article 1, §8 of the New York State Constitution. 141. As a result of this violation, plaintiff Edreweene Raymond is entitled to a declaration that his New York Constitutional right to free speech was violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorneys fees.
8TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claim of plaintiff Adhyl Polanco against all defendants for violation of his first amendment rights to free expression) 142. Defendants have violated the rights of plaintiff Adhyl Polanco under the First Amendment to the United States Constitution and 42 U.S.C. §1983. 143. As a result of this violation, plaintiff Adhyl Polanco is entitled to a declaration that his first amendment rights were violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorney's fees. 9TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claim of plaintiff Adhyl Polanco against all defendants for violation of his right to free speech under Article 1, §8 of the New York State Constitution) 144. Defendants have violated the rights of plaintiff Adhyl Polanco under Article 1, §8 of the New York State Constitution.

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145. As a result of this violation plaintiff Adhyl Polanco is entitled to a declaration that his first New York Constitutional right to free speech was violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorneys fees.
lOTH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claim Pedro Serrano against all defendants for violation of his first amendment rights to free expression) 146. Defendants have violated the rights of Plaintiffs Pedro Serrano under the First Amendment to the United States Constitution and 42 U.S.C. §1983. 147. As a result of this violation plaintiff Pedro Serrano is entitled to a declaration that his first amendment rights were violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorneys fees.
11TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claim of plaintiff Pedro Serrano against all defendants for violation of his right to free speech under Article 1, §8 of the New York State Constitution) 148. Defendants have violated the rights of plaintiff Pedro Serrano under Article 1, §8 of the New York State Constitution. 149. As a result of this violation plaintiff Pedro Serrano is entitled to a declaration that his New York Constitutional right to free speech was violated; an injunction ordering the defendants to refrain from further violation compensatory damages; punitive damages; and an award of attorneys fees.

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12TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claims of plaintiff Derrick Waller against all defendants for violation of his first amendment rights to free expression) 150. Defendants have violated the rights of Plaintiff Derrick Waller under the First Amendment to the United States Constitution and 42 U.S.C. §1983. 151. As a result of this violation, plaintiff Derrick Waller is entitled to a declaration that his first amendment rights were violated; an injunction ordering the defendants to refrain from further violation; compensatory damages; punitive damages; and an award of attorney's fees.
13TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claim of plaintiff Derrick Waller against all defendants for violation of his right to free speech under Article 1, §8 of the New York State Constitution) 152. Defendants have violated the rights of plaintiff Derrick Waller under Article 1, §8 ofthe New York State Constitution. 153. As a result of this violation plaintiff Derrick Waller is entitled to a declaration that their his New York Constitutional right to free speech was violated; an injunction ordering the defendants to refrain from further violation; compensatory damages; punitive damages; and an award of attorneys fees. 14TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claim of plaintiff Sandy Gonzalez against all defendants for violation of his first amendment rights to free expression) 154. Defendants have violated the rights of plaintiff Sandy Gonzalez under the First Amendment to the United States Constitution and 42 U.S.C. §1983.

Case 1:15-cv-06885-LTS Document 1 Filed 08/31/15 Page 47 of 50
155. As a result of this violation, plaintiff Sandy Gonzalez is entitled to a declaration that his first amendment rights were violated; an injunction ordering the defendants to refrain from further violation; compensatory damages; punitive damages; and an award of attorney's fees.
tsTH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Individual claim of plaintiff Sandy Gonzalez, against all defendants for violation of his right to free speech under Article 1, §8 of the New York State Constitution) 156. Defendants have violated the rights of plaintiff Sandy Gonzalez under Article 1, §8 of the New York State Constitution. 157. As a result of this violation, plaintiff Sandy Gonzalez is entitled to a declaration that his New York Constitutional right to free speec were violated; an injunction ordering the defendants to refrain from further violation; compensatory damages; punitive damages; and an award of attorney's fees.
16TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members for a declaratory judgment)
158. The allegations in paragraphs 1 through 157 above are incorporated herein as if fully set forth below. 159. Plaintiffs and all putative class members are entitled to a declaratory judgment that the NYPD's current performance evaluation system and or productivity standards for police officers is an illegal quota system in violation ofNew York State's Labor Law§ 215-a.

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17TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members for a permanent injunction)
160. The allegations in paragraphs 1 through 159 above are incorporated herein as if fully set forth below. 161. Plaintiffs and all putative class members are entitled to a preliminary and permanent injunction, enjoining defendants the City ofNew York and the NYPD from using the number of arrests and or the number of summonses performed by a police officer as a performance evaluation standard or a productivity standard.
VICARIOUS LIABILITY 162. Defendant the City ofNew York is vicariously liable for the acts, omissions and conduct of its employees and agents, including but not limited to, all named individual defendants herein, performed within the scope of their employment, duties and responsibilities.
WHEREFORE, the named Plaintiffs and other members of the class they seek to represent, pray that the Court will: 1). Issue an order certifying this action as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure in the manner described above herein, with the named Plaintiffs as class representatives; 2). Issue a class-wide judgment declaring that the NYPD's current performance evaluation system and or productivity standards for police officers is an illegal quota system in violation of New York State's Labor Law§ 215-a.

Case 1:15-cv-06885-LTS Document 1 Filed 08/31/15 Page 49 of 50
3). Issue an order permanently enjoining the City ofNew York and the NYPD from using the number of arrests and or the number of summonses performed by a police officer as a performance evaluation standard or productivity standard. 4). Issue an order permanently enjoining the City ofNew York and the NYPD from continuing its racially disparate treatment of Hispanic and African-American police officers in performance evaluations and disciplinary actions. 5). Award compensatory damages in the first, second, third, fourth and fifth causes of action, to the named plaintiffs individually, and their class members, against the defendants for the unlawful negative employment actions taken against them including loss ofbenefits, loss of earned time off, loss ofupgrades and promotions, and loss of overtime. 6). Issue an order for damages requiring the defendants to reimburse and make whole, any and all plaintiffs and members of their class for any and all benefits they would have received had it not been for defendant's illegal actions including, back pay with interest, benefits and seniority from the time of the Defendant's illegal actions taken against them. 7). With respect to the first, second, third, fourth and fifth causes of action, an award of compensatory damages to the named plaintiff's individually and to their class members for the pain, suffering, emotional distress, loss of dignity, humiliation and damages to reputation and livelihood endured by named plaintiffs and members of the class in amounts that are fair, just and reasonable, to be determined at trial; 8). Awards of compensatory damages to plaintiffs Raymond, Polanco, Serrano,
Waller and Gonzalez, on the 6th, 7th, gth, 9th, lOth, 11th, 1ih, 13th, 14th, and 15th causes of

Case 1:15-cv-06885-LTS Document 1 Filed 08/31/15 Page 50 of 50
action for violations of their rights to free speech pursuant to the First Amendment of the United States and pursuant to the Article 1, §8 of the New York State Constitution. 9). An award of punitive damages to plaintiffs and members of the class against the defendants, in an amount to be determined at trial. 10). Award plaintiffs all costs of this action and reasonable attorneys' fees, as provided for in 42 U.S.C. § 1988 and 42 U.S.C. § 1920. 11 ). An award to plaintiffs and their class members of such other and further relief as the Court deems appropriate and equitable, including injunctive and declaratory relief as may be required in the interest ofjustice.
New York, New York
August 3\ ,2015
New York, New Y (212) 785-1060

 
 Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 1 of 49

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
E--D--R--E--W---E--E--N--E---R--A--Y--M---O--N--D--,--A--D--H--Y--L--------
POLANCO, PEDRO SERRANO, SANDY GONZALEZ, RITCHIE BAEZ, JULIO DIAZ, FELICIA WHITELY, ROMAN GORIS, DERICK WALLER, KAREEM ABDULLAH, OLAYOKUN OLAGOKE, and WIDMARC PIERRE individually, and on behalf of a class of all others similarly situated,

-against-

Plaintiffs,

Docket No. 15-CV-6885 (LTS)
AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

THE CITY OF NEW YORK, THE MAYOR OF THE CITY OF NEW YORK BILL de BLASIO, in his individual and and official capacity, POLICE
COMMISSIONER WILLIAM J. BRATTON, In his individual and official capacity, NYPD CHIEF OF DEPARTMENT JAMES P. O'NEILL, in his individual and official capacity, and NYPD COMMANDING OFFICER OF PATROL SERVICES, BUREAU CHIEF CARLOS M. GOMEZ, in his individual and official capacity,

Defendants.

Plaintiffs, Edreweene Raymond, Adhyl Polanco, Pedro Serrano, Sandy Gonzalez, Ritchie Baez, Julio Diaz, Felicia Whitely, Roman Goris, Derick Waller, Kareem Abdullah, Olayokun Olagoke, and Widmarc Pierre, for themselves individually and on behalf of all others similarly situated, to wit, Iatino and black police officers within the New York City Police Department, (hereinafter, "Plaintiffs") by and through their attorneys, Nwokoro & Scola, Esquires, allege the following upon information and belief, against the City of New York, the New York City Police Commissioner William J.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 2 of 49

Bratton, NYPD Chief of Department James P. O'Neill, and NYPD Bureau Chief Carlos M. Gomez.

PRELIMINARY STATEMENT

1.

This is an action for declaratory and injunctive relief and for compensatory

damages to redress the deprivation of rights, and prevent future violations ofthe same rights which are secured to the plaintiffs by the 1st, Amendment, (depriving plaintiff of the right of free expression by punishing and retaliating against the plaintiffs for

complaining about and speaking out against the quota) the 51h, and 141h Amendments

(depriving plaintiffs of benefits without due process), and the 14th Amendment

(depriving plaintiffs ofthe equal protection of the laws by discriminating against the

plaintiffs on the basis of race and national origin in the administration of disciplinary

measures for failure to meet the quota) and for violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981,42 U.S.C. §1983, 42 U.S.C. §1985, the New York State Human Rights Law, New York Executive Law §296; New York City Local Law 59 of 1986, as

amended by Local Rule 39 of 1991, §§8-101, et seq,; and multiple and systemic

violations of New York State Labor Law Section 215-a.

2.

Plaintiffs, Latino and African-American minority Police Officers employed by the

New York City Police Department, bring this action against the New York City Police

Department for violations of the 1st, 51h and 141h amendments to the United States

Constitution, and for multiple and systemic violations ofNew York State Labor law

Section 215-a, and consequent negative employment actions illegally taken against the plaintiffs including negative evaluations, lost compensation, lost overtime, lost vacations

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 3 of 49

days earned, punitive postings, punitive transfers, denial of upgrades and promotions, denial of overtime and denial of accrued time earned, and for discrimination in their employment on the basis of race and national origin, as a result of the imposition of illegal quotas and illegal penalties, which imposition has a disparate effect on the African-American and Latino minority police officers, and which discrimination is in violation of42 U.S.C. §1981, 42 U.S.C. § 1985, the New York State Human Rights Law, New York Executive Law §296 and New York City Local Law 59 of 1986 as amended by Local Rule 39 of 1991, §§ 8-101, et seq.

3.

Over the past decade and continuing to the present, the NYPD has pursued an un-

official policy of directing, instructing, compelling and mandating its employees to

perform a mandatory number of arrests, issue a mandatory number of summons or write a

mandatory number of tickets, (quotas) over a defined period of time, as a performance

standard. Failure to meet the quota is punished while employees who meet the quota are

rewarded. In the same period of time, the NYPD has stated officially that it does not

maintain such quotas.

4.

Promotion or job security in the New York City Police Department depends on

the number of arrests made or tickets issued. Although the NYPD has continuously

denied the existence of quotas and asserts that it relies only on a set of 'productivity

goals', or 'performance goals', those phrases are mere euphemisms for a quota system.

5.

Despite its official stance against quotas, there is conclusive proof that the NYPD

has been using and is still using the quota system. Evidence adduced in the case of Floyd,

et al v. The City ofNew York (2013 WL 4046209), a federal class action lawsuit filed

against the NYPD and the City ofNew York that challenged the NYPD's practices of

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racial profiling and unconstitutional stop and frisks, showed that 'performance goals' approximated to the appropriate enforcement activity numbers and an officers failure to engage in sufficient proactive enforcement activities resulted in negative performance evaluation and reassignment to a different command. In its ruling, the court stated "it is difficult to see any difference between a perfomance goal and quota" and further stated, "imposing numerical performance goals for enforcement activities, without providing effective safeguards to ensure the activities are legally justified, could result in an officer taking enforcement action for the purpose of meeting a 'performance goal' rather than because a violation of the law has occurred".

6.

During testimony in the Floyd case, Police Officer Adhyl Polanco, a named

plaintiff in this action, who at the time was an eight-year veteran ofthe NYPD who

worked in the Bronx, testified that he was told at a daily roll call that he had to log at

least five stop-and-frisks, make one arrest and write 20 tickets each month. During the

same trial, NYPD Officer Pedro Serrano (who is also a named plaintiff in this matter)

testified that at roll call, supervisors would urge the gathered officers to make more

arrests, make stop and frisk stops and write more summonses. He also testified that when

he refused to make the quotas, his superiors punished him by giving him forced overtime

on his days off, low performance evaluations and canceling his days off. Tape recordings

made by Officer Serrano were introduced into evidence. In those recordings, NYPD

Supervisors can be heard stating that they want more stops-and-frisks and arrests and

warning the rank and file that if they didn't want to be on a 'foot post' (an undesirable

transfer) they needed to make more 'collars' (arrests). At the same hearing, then NYPD

Deputy Chief Michael Marino, testified that when he was overseeing the 75th precint in

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Brooklyn, he had to set a goal of 10 summonses and one arrest per month because officers were performing poorly.

7.

Plaintiff herein, Officer Polanco has asserted that his command, the 41st Precint,

regularly requires officers to make at least "one arrest and twenty summonses" per

month. Polanco's assertions were confirmed by an audiotape obtained by the media. The

contents of the tape reveal that these quotas are enforced through coercion and threats of

job loss; to wit, a patrol supervisor at the 41 81 Precint is overheard saying: "Ifyou think

one and twenty is breaking your balls, guess what you'll be doing. You are going to be

doing a lot more, a lot more than what they are saying". The tape also reveals that another

patrol supervisor chimed in and told the officers: "next week 25 and one, 35 and one, and

until you decide to quit this job and go to work at Pizza Hut, this is what you are going to

be doing till then".

8.

The New York Daily News obtained and published two internal memos which

were posted inside the roll-call room at NYPD's 77th Precint. The memos specifically

instructed officers about the "number of tickets to give drivers for cell phone, seat belt,

double-parking, bus stop, tinted windows and truck route violations" that they were

expected to issue. The memos remained posted for several weeks inside the roll-call room

until the media began inquiring. (James Fanelli, Cops at Brooklyn's crime-ridden 77th

Precinct told to meet quotas for moving violations, memos say, N.Y. Daily News, Nov. 8,

2010).

9.

Responding to a query from a civilian who was cited on consecutive days in

November of 2009 for allegedly occupying more than one seat on the New York City

subway, the officer responded: "Recently we've been told to write tickets instead of give

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 6 of 49
warnings for this type of thing." The officer explained that they needed to meet quotas. (Tom Namako and Kirsten Fleming, Nightime Riders in Big Sit Fit, The New York Post. December 26, 2009).
10. In December of2010 and in response to the pressure from their supervisors to issue baseless summonses pursuant to the policy and practice of quotas, police officers at the 79th Precinct considered organizing a so-called "daylong summons boycott." As one officer at the precinct explained, "Nobody feels this is right, asking us to write summonses just to meet a quota." (Rocco Parascandola, Irate cops at the 79th Precinct in Bedford-Stuyvesant threaten boycott over quotas, N.Y. Daily News, Dec. 12, 2010). In response to the planned summons-boycott at the 79th Precinct on December 13, 2010, Deputy Chief Michael Marino marched into the precinct at roll call with a deputy inspector and read officers the riot act. "Just try it," a police source quoted Marino as saying. "I'll come down here and make sure you write them." Marino also vowed to transfer people, like he did when he was the commanding officer of the 75th Precinct in East New York. (Rocco Parascandola, Deputy ChiefMichael Marino threatens cops at the 791h Precinct who want to go on summons strike, N.Y. Daily News December 15, 2010).
11. In the case of Carolyn Bryant v The City ofNew York, (Index Number 22011/07Kings County Supreme Court), during the trial of an action for false arrest, malicious prosecution and police brutality brought against the NYPD, and after hearing testimony from Captain Alex Perez of the 81 st Precint of the NYPD to the effect that arrest numbers are a factor in the assessment of police officer performance, a jury in Kings County sitting in February 2011, found as a matter of fact that the NYPD has an un-official quota

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 7 of 49
system. The jury verdict was reported in the New York Daily News of February 19, 2011. (Oren Yaniv, Court rules that cops do use quotas; woman injured in 2006 arrest settles for $75,000, N.Y. Daily News. February 19, 2011). 12. In February 2012, NYPD Officer Craig Matthews, filed a lawsuit against the NYPD alleging the use of a detailed quota system at the 42nd Precint, in the Bronx, which includes regular color-coded computer reports used to track compliance with the quotas. Officers who fail to meet the quotas are highlighted in red ink on the reports and subjected to a wide range of retaliatory actions. Officer Matthews alleges that he repeatedly reported the use of the quota system to the Precint's commanding officers and instead of addressing that problem, they retaliated against him by giving him punitive assignments, denying him overtime, denying him leave, giving him poor evaluations and constantly harassing and threatening him. 13. The New York City Office of Collective Bargaining concluded that officers in Brooklyn's 75th Precinct were required to issue four parking tickets, three moving violation citations; three "quality-of-life" summonses, make one arrest and two stop-andfrisks each month. Arbitrator Bonnie Siber Weinstock ruled that the NYPD maintained an illegal "summons quota for traffic violations in the precinct and penalized officers for failing to meet the stated number of traffic citations." She ordered the city to cease and desist from the practice. (New York City Ticket Quota Confirmed, Denied, The Newspaper.Com, January 21, 2006). 14. Kieran Creighton, commander of the NYPD Housing Police Service Area 8 in the northern Bronx, was investigated for ordering officers to make a certain number of arrests each month. According to The New York Daily News. The incident allegedly occurred in

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 8 of 49
the spring when Creighton ordered at least eight members of an undercover anti-crime team to a meeting in Pelham Bay Park to berate them about an alleged lack of arrests, sources said. 'You can't make the nine collars a month, then we'll all have to go our separate ways," Creighton told the officers, according to an internal complaint obtained by The News. Anything less than nine arrests would be a "personal slap in the face," Creighton allegedly said. Creighton then told the cops to finagle the times of arrests so any overtime was paid for by a federally funded anti-drug program, the complaint states. Unbeknownst to Creighton, one officer had his NYPD radio switched on so the captain's 10 to 12 minute speech was broadcast to Bronx precincts in Morrisania and Schuylerville and taped by the 911 dispatcher. (Allison Gendar; NYPD captain allegedly caught in arrest quota fixing, The New York Daily News, November 14, 2007). 15. When defendant William Bratton took office as Police Commissioner in January, 2014, he promised an end to quotas and the numbers-driven policing culture championed by his predecessor, Raymond Kelly, stating "I want to focus on the quality of police actions, with less emphasis on our numbers and more emphasis on our actual impact". Mr. Bratton made the statement in an official video released by the NYPD and published on the website of the Patrolmen's Benevolent Association. (Daily News, January 28, 2014: Mark Morales, 'NYPD Commissioner bags bust quotas in favor of actual impact'). However, the reality is that one year later, quotas remain alive and well and the NYPD is aggressively pursuing a numbers driven agenda with regard to arrests, tickets and summonses.
16. Recently, the New York Post newspaper obtained and reported a text sent by an NYPD Supervisor, Lieutenant Stevelle Brown of the 1051h Precint in Queens, to an

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 9 of 49
officer under her command. The officer had asked for permission to take the night off and Lieutenant Brown responded by asking for details on the officer's 'activity for last month', with the officer answering that it was just 'one moving violation and three parking summonses' Brown responded, "I believe, I will be seeing you at work then". Denying an officer time off for failure to make a certain number of arrests, tickets or summonses is indicative of the fact that the quota system is currently in use. (Shawn Cohen and Bruce Golding; Cop denied time off because of quotas, New York Post, February 20, 2015.)
17. On November 16, 2013, the Daily News reported that four traffic enforcement agents, James Felder, Steven Douglas, Tracy Ellis and Joel Fernandez, along with and their union, Local 983, brought an action against the City and the NYPD alleging that they were being punished by denial of overtime, denial of shifts, denial of meal breaks, being given poor evaluations and threatened with termination, if they failed to tow-away three or four vehicles per shift. The plaintiffs alleged that they were being pressured by supervisors to tow vehicles they wouldn't normally tow in order to meet the quota. (Pete Donohue, Greg B. Smith and Corrine Lestch; "Traffic-enforcement agents sue NYPD, City over towing quotas" Daily News, November 16, 2013). 18. Under the leadership of the named defendants, the named plaintiffs and all unnamed members of the prospective class have been compelled, instructed, directed and or mandated to issue a certain number of summons, write a certain number of tickets, tow a certain number of vehicles, or write a certain number of violations. Similarly, the named plaintiffs and all un-named members of the prospective class have been punished by the defendants, by being harassed, threatened with termination and other negative

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 10 of 49
consequences, received negative evaluations, lost compensation, lost overtime, lost vacation days earned, punitive postings, punitive transfers, denial of upgrades and promotions, denial of overtime, and denial of accrued time earned; for their failure to meet the mandated numbers of summonses, tickets, tow-aways, and/or violations. 19. The imposition of illegal quotas has led to a pattern and practice of discrimination against officers of Hispanic and African-American heritage on the basis of color, race and national origin by, inter alia; maintaining and allowing a hostile work environment; disparate treatment through an unfair and unreasonable perfomance evaluation system; unfounded, unwarranted and improperly conducted disciplinary investigations, including integrity tests and interrogations; the imposition of unfounded, unwarranted and overly disciplinary penalties, including but not limited to loss of vacation, suspension, termination, loss of pension, assignments to undesirable and/or particularly dangerous tasks. The disciplinary process of the NYPD, although neutral on its face, has had a disparate impact on minority officers. 20. Upon information and belief, the defendants have enacted and enforced unwritten "productivity standards" or de facto quotas of a certain number of arrests and a certain number of summonses and or violations per month for each NYPD officer. The officers who fail to meet the productivity standards face adverse employment consequences. Upon information and belief, in their efforts to satisfy the productivity standards (meet the quota), NYPD officers have engaged in widespread, suspicion less stops and frisks, improper and baseless arrests, and improper and baseless summonses and/or violations.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 11 of 49
21. Upon information and belief, the improper stops, frisks, arrests, summonses and violations generated by the pressure to comply with illegal quotas, have a negative impact on the community, and a disparate and disproportionately negative impact on minority African-American and Latino community. Upon information and belief, the NYPD targets black and Iatino communities and black and Iatino individuals within the five boros of New York in order to obtain the numbers necessary to meet the iUegal quotas. 22. The named plaintiffs herein and the prospective class members are AfricanAmerican and Latino officers who are under supervisory pressure to meet iUegal quota standards by performing racially discriminatory and unwarranted enforcement actions against their own minority community. Plaintiff's failure to meet the iUegal quota results in adverse employment consequences including but not limited to negative evaluations, termination or threat of termination, lost compensation, lost overtime, denial of promotions and upgrades, denial of overtime, loss of vacation days earned, loss of accrued time earned, punitive postings and punitive transfers, suspension, investigations, charges, suspensions, formal and informal discipline, assignments to undesirable and/or particularly dangerous tasks, punitive postings and punitive transfers, all leading and contributing to a hostile working environment and raciaHy disparate treatment of the minority police officers.
23. Plaintiffs herein and the prospective class members are disproportionately affected by the imposition of iUegal quotas and the punitive consequences of the failure to meet the quotas, as opposed to white police officers, because plaintiffs being minorities working in neighborhoods dominated by minority residents, are unwilling to perform racially discriminatory and unwarranted enforcement actions against the

--------------
Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 12 of 49
minority community. The efforts of the defendants to compel plaintiffs to comply with the illegal quota system has led to a racially unfair and unreasonable performance evaluation system and unfair and unwarranted disciplinary actions and penalties to which the plaintiffs are subjected and to which white police officers are not subjected. 24. The named plaintiffs and prospective class members who have complained about the illegal quotas and its racially discriminatory application to the minority community face negative employment action from the defendants in the form of unwarranted and improperly conducted charges and disciplinary investigations, and unwarranted disciplinary penalties leading to a hostile working environment and racially disparate treatment of the minority police officers on the basis of their race, color and national ongm.
25. The performance evaluation system to which the plaintiffs are subjected by the defendants is unfair in that it is not evenly applied to all precints depending on the location of the precint. For instance, under the numbers determined performance evaluation system, a police officer from a precint located in a predominantly white residential area will receive a positive evaluation while a police officer from a precint located in a predominantly minority area will receive a negative evaluation for the same exact number of enforcement actions. 26. The performance evaluation system to which the plaintiffs are subjected by the defendants although neutral on its face, is un-evenly applied in that minority officers are more likely to be charged, investigated and receive more punishment, than their white counterparts for the same alleged offenses.

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JURISDICTION 27. Jurisdiction is conferred upon the Court pursuant to 28 U.S.C. §§ 1331 and 13343 (3) & (4) as this action seeks redress for the violation of plaintiffs civil rights. Plaintiffs further invoke the Court's supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a) over any and all state law claims that are so related to the claims within the original jurisdiction of the Court that they form part of the same case or controversy. Plaintiff's claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202 and Rule 57 ofthe Federal Rules of Civil Procedure.
VENUE 28. Venue is proper in the United District Court for the Southern District of New York pursuant to 28 U.S.C. §§ 1391 (b) and (c).
JURY DEMAND 29. Plaintiffs demand trial by jury in this action and on each and every one of their claims.
PARTIES 30. PlaintiffEdreweene Raymond is an African American male Police Officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered negative employment consequences as a result of the failure to meet the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; Has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech;

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and has been penalized for reporting, opposing and complaining about the illegal quotas and its racially discriminatory application against the minority community. 31. Plaintiff Adhyl Polanco is a Hispanic male and police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech; has been compelled to work forced overtime, and has been penalized for reporting, opposing and complaining about the illegal quotas and its racially discriminatory application against the minority community
32. Pedro Serrano is a Hispanic male and a police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered negative employment consequences as a result of the failure to meet the illegal quota; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; Has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 33. Sandy Gonzalez is a Hispanic male and a police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered negative employment consequences as a result of the failure to meet the illegal quota; has been racially discriminated against in the imposition of command disciplines for failing

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to meet the illegal quota; has expressed his opposition to the iUegal quotas and has been retaliated against in violation of his rights to :free speech; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community 34. Plaintiff Ritchie Baez is a black male of Hispanic heritage and a police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been raciaily discriminated against in the imposition of command disciplines for failing to meet the iiiegal quota; has suffered negative employment consequences as a result of the failure to meet the iUegal quotas; has been penalized for reporting and complaining about the iiiegal quotas and its raciaiiy discriminatory application against the minority community. 35. Plaintiff Julio Diaz is a Hispanic male and police officer employed by the NYPD who has been under supervisory pressure to comply with the iiiegal quotas; has been raciaiiy discriminated against in the imposition of command disciplines for failing to meet the iiiegal quota; has suffered negative employment consequences as a result of his failure to meet the iiiegal quotas; and has been penalized for reporting and complaining about the iiiegal quotas and its raciaiiy discriminatory application against the minority community.
36. Plaintiff Felicia Whitely is a female African American Police Officer employed by the NYPD who has been under supervisory pressure to comply with the iUegal quotas; has been raciaiiy discriminated against in the imposition of command disciplines for failing to meet the iiiegal quota; has suffered negative employment consequences as a result of the failure to meet the iUegal quotas; and has been penalized for reporting and

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complaining about the illegal quotas and its racially discriminatory application against the minority community.
37. Plaintiff Roman Goris is a Hispanic male and police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community.
38. Plaintiff Derick Waller is an African American male police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has expressed his opposition to the illegal quotas and has been retaliated against in violation of his right to free speech; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 39. PlaintiffKareem Abdullah is an African American male police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and

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complaining about the illegal quotas and its racially discriminatory application against the minority community.
40. Plaintiff Olayokun Olagoke is an African American male police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community.
41. Plaintiff Widmarc Pierre is an African American male police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has been racially discriminated against in the imposition of command disciplines for failing to meet the illegal quota; has suffered negative employment consequences as a result of his failure to meet the illegal quotas; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community
42. Defendant the City ofNew York (the City) is and was at all times relevant hereto, a municipal corporation duly organized and existing under the laws of the State of New York, exercising governmental authority. Defendant is an employer subject to Federal Laws and to the New York State Human Rights Law and New York City Local Law. Defendant City is a person for purposes of 42 U.S.C. §§ 1981 and 1985 and is and was the employer of the named plaintiffs and prospective class members as well as the individually named defendants, at all relevant times.

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43. Defendant the City ofNew York contains within it, the New York City Police Department (NYPD) which was and is a department, agency, bureau and /or subdivision of the Defendant City. The New York City Police Department is and was at all times relevant hereto, a local government agency of the City ofNew York and as a result thereof, defendant City was or is the employer of all the individually named plaintiffs, the prospective class members and the individual defendants herein. 44. Defendant Bill DeBlasio is the Mayor of the City ofNew York. Upon information and belief, Defendant De Blasio has routinely met with the Police Commissioner; Deputy Police Commissioners and other high ranking members of the NYPD to set policy and make recommendations relating to the polices, administration, practices, customs and procedure of the NYPD and relating to the disciplinary system and implementation of penalties within the NYPD. Defendant De Blasio knew or should have known of the customs, practices and policies described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the plaintiffs, and Mayor DeBlasio condoned, ratified and/or authorized such practices and policies.
45. Defendant William J. Bratton has been the Police Commissioner for the City of New York from January 2014 to the present. Defendant Bratton is an employee ofthe City of New York and is the principal administrator of defendant NYPD. He is responsible for the application of the NYPD's enforcement and administrative polices including its internal investigatory and disciplinary process. He is the final authority in all disciplinary matters within the NYPD. Police Commissioner William J. Bratton knew or

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should have known of the customs and practices described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the plaintiffs and Commissioner Bratton condoned, ratified and/or authorized such conduct.
46. Defendant James P. O'Neill is the NYPD's ChiefofDepartment and the highest ranking non-civilian police uniformed police officer. Defendant O'Neill is an employee ofthe City of New York. Upon information and belief, he is in charge of all NYPD operations answering only to the Police Commissioner and the Mayor. Defendant O'Neill, knew or should have known of the customs and practices described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the plaintiffs and Chief O'Neill condoned, ratified and/or authorized such conduct.
47. Defendant NYPD Patrol Bureau Chief Carlos M. Gomez is the NYPD's commanding officer of patrol services, which includes the precints. Defendant Gomez exercised supervisory control over the plaintiffs at all relevant times and participated in making and executing the policy and practices complained of herein. Defendant Gomez, knew or should have known of the customs and practices described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the plaintiffs and defendant Gomez condoned, ratified and/or authorized such conduct.

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STATEMENT OF FACTS (Experiences of the named plaintiffs)
48. PlaintiffEdreweene Raymond is a police officer in the NYPD's Transit District. He was inducted in to the force in 2008. During his first year, he was told by his Supervisors at Transit District 32, in Crown Heights, Brooklyn, that his core duty was to get as many arrests as possible and issue as many summons as possible in order to make the quota. After seven months on the job, he complained to his superiors about this requirement. He requested of his Sergeant that he be allowed to use his discretion and that he be excused from the quota. His request was denied. In 20 10, for his lack of activity, an epheumism for not meeting the quota, he was given a punitive posting, the Coney Island Summer detail. As further punishment, he was posted to the midnight shift. On the mid-night shift, he was again given a quota and told by his superiors to make the quota. He was directed to make the quota by arresting people on the train at night for occupying more than one seat. He refused to do this and again failed to make the quota. He was chastised by his supervisors and told that his numbers were too low and he needed to make the numbers just like everyone else or be punished and possibly fired. In 2012, he was transferred out ofthe a Special Operations Unit because of not getting enough arrests to meet the quota, and told "to be in this unit, you have to produce the required numbers". Since 2012, he has been posted to the 3rd Platoon ofthe Transit District, and for not making the quota and for complaining about it, he has received below par evaluations and his superiors have threatened to place him on performance monitoring. Although Officer Raymond is an excellent candidate for promotion to the rank of sergeant, and scored 93 in the qualifying examination, thus ranking him number

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81h out ofthe 932 individuals who took the same examination, he has been threatened by his superiors that unless he increases the number of arrests and summons issued, he will not be promoted to the rank of sergeant. In July 2014, Officer Raymond wrote a memo to the Commanding Officer of Collaborative Initiatives, complaining about the strong pressure to increase arrests for low-level transit crimes and detailing his personal experience with this pressure.
49. As a police officer within the Transit District, Officer Raymond was and is required by his supervisors to meet a quota of 1 arrest and 5 summons a month. Officer Raymond is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against the low-income minority riders of the public transit system.
50. For not meeting the quota, plaintiff Raymond was penalized by punitive postings, low performance evaluations, denial of upgrades and promotions, denial of overtime, and denial of time off. His supervisors threatened to place him on performance monitoring and he was denied promotion that he qualified for. 51. For complaining about the quota and expressing his opinion about it, Officer Raymond was penalized by punitive postings, low performance evaluations. denial of overtime, and denial of time off. His supervisors threatened to place him on performance monitoring and he was denied promotion. 52. Plaintiff Sandy Gonzalez is a police officer within the NYPD's 40th precint. Plaintiff Gonzalez was and is required by his precint commander and other superiors to meet a quota of one arrest and twenty summons per month. Plaintiff Gonzalez was unwilling to meet the quota because he believed that it was unfair, unreasonable, and

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racially discriminatory against residents of the south Bronx. In 2013, he was penalized for not meeting the quota by being given a low evaluation score of2.5. He was also penalized by being forced to work, alone, on a fixed post in cold weather at a dangerous location at a time when the NYPD directives were for all patrolmen to have partners. During this posting, plaintiff Gonzalez fell and suffered injury and reported it to his superiors. For not writing enough summons, plaintiff Gonzalez was threatened with negative evaluations and chastised by his precint commander, Deputy Inspector Christopher McCormack, who stated '·'on 128th Street, you can write 100 C summons, any day". ('C' is for criminal).
53. For not meeting the quota, plaintiff Gonzalez was penalized by punitive postings, low performance evaluations, denial of overtime, forced overtime and denial of time off. He was placed on performance monitoring, which could have led to termination. 54. Plaintiff Gonzalez made a formal complaint to his superiors and to the Internal Affairs Bureau of the NYPD regarding the imposition of the illegal quota. His superiors retaliated with threats and attempts to humiliate Mr. Gonzalez verbally and by instituting an un-warranted investigation against him regarding his fall. A white police officer who fell under the same circumstances as plaintiff Gonzalez, was not investigated. 55. Plaintiff Ritchie Baez was employed by the NYPD as a police officer in 2004. He was posted to the 40th precint in 2005 and remains there till today. In 2013, plaintiffBaez was required by his precint commander and other superiors to meet a quota of one arrest and twenty summons per month. Plaintiff Baez was unwilling to meet the quota because he believed that it was unfair, unreasonable, and racially discriminatory against residents of the south Bronx. Plaintiff did not meet the quota in 2013. Plaintiff Baez was penalized

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for not meeting the quota by being given a low performance evaluation of2.5. In the year that he received the low evaluation of2.5, plaintiff Ritchie Baez performed great police work in three instances; In May 2013, Officer Baez assisted a citizen of Spanish descent whose car had been stolen. Officer Baez used his knowledge of Spanish to interview the victim and realizing that time was of the essence, quickly performed a canvass of the immediate neighborhood for the missing vehicle with the result that he immediately found the stolen vehicle and arrested the perpetrator who was charged with Grand Larceny Auto; in October 2013, Officer Baez was helping Housing police provide crowd control duties at 152nd Street, when he recognized a face in the crowd as an accused robber from a wanted poster. During the robbery, the suspect was accused of slashing her victim several times in the face. Acting quickly, Officer Baez promptly apprehended and arrested the suspect; The same year, Officer Baez was assisting a Special Operations Unit during an automobile stop. He observed an individual being interrogated by the Sergeant of the Special Operations Unit. Officer Baez realized that he had seen this individual on a wanted poster as a known gang member being sought by the police. When the individual gave a fictitious name to the Sergeant, Officer Baez alerted the Sergeant and was proven correct by a check of the NYPD records, leading to the arrest of the wanted individual. Despite the above, PlaintiffBaez was given a low performance evaluation in 2013 because his arrest and summons numbers did not meet the quota. 56. For not meeting the quota, plaintiffBaez was penalized by punitive postings, low performance evaluations, denial of overtime, forced overtime and denial of time off. He was placed on performance monitoring, which could have led to termination. He was

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posted to the sky watch posting, which was used by his superiors at the precint, solely as a punitive posting.
57. PiaintiffBaez complained to his superiors about the imposition of illegal quotas and the penalties for not meeting the quota, to no avail. 58. Plaintiff Adhyl Polanco was employed by the NYPD as a police officer in 2005. He was posted to the 41st Precint in 2005. His supervisors required him to meet a quota of one arrest and twenty summons per month. Plaintiff Polanco was unwilling to meet the quota because he believed that it was unfair, unreasonable and racially discriminatory against the minority community. Plaintiff complained about the quota system and expressed his unwillingness to comply with it. Plaintiff Polanco was penalized for not meeting the quota with low performance evaluations, punitive postings, denial of time off, denial of overtime, punitive transfers and forced overtime. 59. NYPD supervisors at the 41st Precint enforced the quotas through coercion and threats ofjob loss. A supervisor was recorded saying about the quota "Ifyou think one and twenty is breaking your balls, guess what you'll be doing. You are going to be doing a lot more, a lot more than what they are saying". Another supervisor then stated: "next week 25 and one, 35 and one, and until you decide to quit this job and go to work at Pizza Hut, this is what you are going to be doing till then". Officer Polanco recorded these comments.
60. Officer Polanco spoke out publicly about the NYPD's maintenance of the quota system, and in 2009, testified in the Floyd case (federal class action law suit regarding unconstitutional "stop and frisks" by the NYPD. The defendants have punished Officer Polanco with unwarranted and improperly conducted disciplinary investigations,

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including integrity tests and interrogations, and imposed unfounded, unwarranted and overly disciplinary penalties including, loss of vacation and suspension. 61. Plaintiff Pedro Serrano is a police officer who was posted to the 40th precint in 2005 and remains there till date. Officer Serrano's supervisors at the 40 precint required and require him to write at least 20 summons and perform one arrest per month. Plaintiff Serrano is unwiHing to meet the quota because he believes it to be unfair, unreasonable and raciaUy discriminatory against the minority community. Plaintiff Serrano complained to his supervisors about the quota and failed to maintain the numbers required of him. As a consequence, his supervisors threatened him with negative consequences such as forced overtime on his weekends off, punitive postings, and then carried out those threats. 62. Plaintiff Serrano experienced first hand the negative effect of the quotas imposed by his supervisors on the minority community where he patroUed in the South Bronx. For his failure to meet the quota, he received a negative performance evaluation. One of his supervisors Executive Officer Materasso, told him that in order for him to get a better evaluation, he must arrest, summon and stop and frisk more people. Plaintiff Serrano explained to Officer Materasso, the deputy commandant of the 40th precint, that the residents of the 40th precint are predominantly low income and that he did not feel right about giving them spurious summons. She disagreed and referred to the residents of the 40th precint as "animals". Plaintiff Serrano, of Puerto Rican origin similar to many residents of the South Bronx, was deeply offended. 63. In the spring of2012, while driving by Beekman Avenue and East 141 street, the commandant of the 40th precint, defendant Christopher McCormack, saw a black person standing against the waiL In the presence of plaintiff Serrano, Inspector McCormack got

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out of his car and walked up to this individual and proceeded to open the black man's pants. He opened the man's zipper, pulled down the man's pants and exposed the man's penis. He then grabbed the man's penis and passed his hands between the man's butt cheeks. Defendant McCormack then pulled out some narcotics and gave it to his driver. Upon information and belief, Defendant McCormack conducted himself in a similar manner at other times. Plaintiff Serrano was offended by this conduct. 64. Plaintiff Serrano reported the illegal quotas and the harassment received from his superiors for not meeting the quotas, to the Internal Affairs Bureau of the NYPD but nothing was done about it. Plaintiff Serrano also testified in the Floyd federal class action lawsuit regarding the use of illegal quotas within his precint. As punishment, he has received low performance evaluations, forced overtime, cancelled time off, threats of termination and punitive postings. 65. Plaintiff Roman Goris is a police officer within the NYPD's 7th precint. Plaintiff Goris was and is required by his precint commander and other superiors to meet a quota of one arrest and twenty summons per month. Plaintiff Goris is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against the minority residents of Brooklyn. Police Officer Goris believes that the quota system implemented by the Police Department is the main reason for the public's hostility towards police officers and that police officers should be allowed to use their discretion on a case by case basis. 66. For not meeting the quota, plaintiff Goris was penalized by punitive postings, low performance evaluations, denial of overtime and denial of time off.

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67. Plaintiff Julio Diaz is a police officer within the NYPD's 75th precint. Plaintiff Diaz was and is required by his precint commander and other superiors to meet a quota of one arrest and twenty summons per month. Plaintiff Diaz is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against minority residents of the city of Brooklyn. 68. For not meeting the quota, plaintiffDiaz was penalized by punitive postings, low performance evaluations, denial of overtime, denial of upgrades or promotions, forced overtime and denial of time off. He was placed on performance monitoring, which could have led to termination. 69. Plaintiff Derrick Waller was employed by the NYPD as a police officer in 1995. He is currently a police officer assigned to the 77th precint in Brooklyn. Officer Waller is required by his precint commander and other superiors to meet a quota of one arrest and thirty summons per month. Such quotas were posted on the bulletin boards of the 77th precint and officers who failed to meet the quota, including officer Waller, were identified on an list issued by Deputy Inspector Elvio Capocci, and threatened with disciplinary actions for failing to comply. Plaintiff Waller is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against minority residents of the City of Brooklyn. From 2006 to the present, plaintiff Waller has been under intense pressure by numerous members of the NYPD supervisory echelon to increase C summons, arrests and UF-250's (stops and frisks). Officer Waller on one occasion was told by a Sgt. Anthony Laroche ofthe performance monitoring division to "pick any dude walking across the street with his pants hanging down, underwear showing and write a jay walking summons" and "just write the damn summonses".

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70. For not meeting the quota, complaining about the quota, and expressing his opposition to the illegal quota, plaintiff Waller was penalized by punitive postings, low perfonnance evaluations, denial of overtime, and denial of time off. He was placed on perfonnance monitoring, which could have led to tennination. He was posted to the sky watch posting, which was used by his superiors at the precint, solely as a punitive posting.
71. Plaintiff Waller complained to his supervisors within the NYPD including Lt. David Wittman, Inspector Cappocci and Lt. Cotton, on several occasions regarding the quota and the unfair punishment for not meeting the quota, to no avail. Officer Waller has been punished further by being excluded from any off duty employment which other officers are routinely allowed to engage in and being excluded from spike overtime, taken out of a squad patrol vehicle and assigned to foot posts although he is the most senior officer in his squad, and given steady tours of Skywatch, a solely punitive posting. 72. PlaintiffKareem Abdullah is a police officer within the NYPD's 43rd precint. Officer Abdullah joined the force in 1993 and was posted to Transit District 11. While there, plaintiff Abdullah was required by his superiors to meet a quota of one arrest and twenty summonses a month, or one arrest and then summonses for those on the midnights shift. Plaintiff Abdullah was unwilling to meet the quota because he believed that it was unfair, unreasonable, and racially discriminatory against minority residents of the Bronx. For not making the quota, "refusing to arrest people solely to make up the numbers" he was transferred the 43rd precint and placed on perfonnance monitoring. He was told by his superiors that in order to be relieved from perfonnance monitoring, he had to make two or three arrests a month at least. At the 43rd Precint, the quota that

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officer Abdullah currently has to meet is one arrest and ten summonses a month, although this is less rigorous than the quota imposed at the Transit District, it is still strictly enforced.
73. For not meeting the quota, plaintiff Abdullah was penalized by punitive postings, low performance evaluations, denial of overtime, and denial of time off. He was placed on performance monitoring, which can lead to termination. 74. Plaintiff Abdullah made a formal complaint to his PBA delegate and via his PBA delegate to his superiors at One Police Plaza regarding the quota imposition and his punishment for not meeting the quota. He has received no response. 75. PlaintiffOlayokun Olagoke is a police officer within the NYPD's 66th Precint. Officer Olagoke joined the force in 2008. As a minority black officer in a mostly white squad, plaintiff Olagoke was disproportionately punished for not meeting the quota while white police officers, who also failed to meet the quota, received less or no punishment. At the 66th Precint, plaintiff Olagoke is required to meet a quota of ten A summons, one B summons, one C summons (16 summons) and one arrest per month. PlaintiffOlagoke is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against minority residents of Brooklyn. 76. For not meeting the quota, plaintiffOlagoke was penalized by punitive postings, a punitive transfer, low performance evaluations, denial of overtime, and denial of time off. He was also suspended from paid detail. 77. PlaintiffOlagoke made a formal complaint to his union representative and his commanding officer regarding the quota and his unfair punishment for failing to meet it and was told that he should bring his numbers up if he wants to escape punishment. In

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retaliation for his complaints, plaintiff Olagoke was subjected to a hostile work environment wherein his Sergeant, Joe Chen, subjected him to verbal humiliation, at one time ordering him not to speak on the squad car radio, calling him "stupid" and a "moron" and threatening to and putting him on a punitive post at the boardwalk. 78. Plaintiff Felicia Whitely is a police officer in the NYPD's Housing Burea, PSA 1 charged with patrolling the New York City Housing Developments. Officer Whitely is required to meet a quota of one arrest and five C summons every month. Plaintiff Whitely is unwilling to meet the quota because she believes that is is unfair, unreasonable, and racially discriminatory against minority residents of Brooklyn. 79. For not meeting the quota, plaintiff Whitely was penalized by punitive postings, a punitive transfer, low performance evaluations, denial of overtime, and denial of time off. Plaintiff Whitely was banned from overtime and from paid detail as a result of her inability to meet the quota. 80. Plaintiff Whitely has complained about the foregoing to her platoon commander, her union delegate, and her supervisor, to no avail. 81. PlaintiffWidmarc Pierre is a police officer assigned to the NYPD's 66th Precint located in Brooklyn. As an officer in the 66th precint Officer Widmarc is required to meet a quota often A summons, one B summons, one C summons (16 summons) and one arrest per month. Plaintiff Widmarc is unwilling to meet the quota because he believes that it is unfair, unreasonable, and racially discriminatory against minority residents of Brooklyn. 82. For not meeting the quota, plaintiffWidmarc was penalized by punitive postings, a punitive transfer, low performance evaluations, denial of overtime, and denial of time

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off. PlaintiffWidm.arc was told by his superiors that he received a sub-par evaluation because he did not have enough stop and frisks and did not write enough C summonses..
CLASS ACTION ALLEGATIONS 83. Plaintiffs bring this action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure on their own behalf and on behalf of all other persons similarly situated. 84. Plaintiffs class consists of all Hispanic and African-American police officers who are being compelled and pressured to meet illegal quota numbers in the issuance of summonses, in the stop and or frisks of citizens and in the arrest of citizens, within the minority communities targeted by the NYPD, who have been penalized with negative employment consequences for not meeting said quotas, who have been penalized by being forced to work overtime on their time off, and who, upon information and belief, have been subjected to discrimination on the basis of color, race or national origin in the form of a hostile work environment, disparate performance evaluation treatment, and disparate disciplinary treatment for having challenged the illegal quota system in the department. Plaintiff's claims are typical of the claims of the other members of the class as they have all been forced, pressured and compelled to meet illegal quotas, have suffered negative employment consequences for not meeting the illegal quotas, and have suffered disparate performance evaluations and disparate disciplinary treatment for their failure to meet the desired quota numbers. Plaintiff's attorneys are qualified and generally able, with extensive experience in employment litigation. For these reasons, plaintiffs

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will fairly and adequately protect the interests of the class in this action for declaratory and injunctive relief and for compensatory and punitive damages. 85. The members of this class are too numerous to be joined in one action. Upon information and belief, there are approximately 6000 Hispanic and 5000 AfricanAmerican police officers who will have been and will be affected by the imposition of the illegal quota system, the negative employment consequences of not meeting the illegal quota system, the imposition of forced overtime on their time off, disparate performance evaluations and disparate disciplinary actions for failure to meet the illegal quota numbers. Upon information and belief, thousands of these officers have already been subjected to the said unlawful conditions. 86. The questions of law common to the above described class is whether or not the City of New York through the NYPD, compels police officers to comply with illegal quotas in the performance of arrests, stops and or stop and frisks, and the writing of summonses and tickets and in the performance of their duties contrary to New York State Labor Law§ 215-a; whether the City of New York through the NYPD, penalizes police officers for failing to comply with illegal quotas contrary to New York State Labor Law § 215-a; whether as a result of being forced to meet illegal quota numbers in their own minority neighborhoods, the plaintiffs have suffered racially disparate performance evaluations and racially disparate disciplinary treatment and whether such conduct by the defendants constitute a deprivation of the rights conferred on the plaintiffs by the Civil Rights Act of 1866,42 U.S.C. § 1981,42 U.S.C. §1985, the New York State Human Rights Law, New York Executive Law §296; New York City Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§8-101, et seq.

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87. Plaintiffs and members of their class meet the requirements of Rule 23(a) of the Federal Rules of Civil Procedure (F.R.C.P.).889. The defendants have acted or refused to act, on grounds generally applicable to the class, thereby making appropriate injunctive relief and declaratory relief with respect to the class as a whole, meeting the requirements of Rule 23(b)(2) of the FRCP.
FACTUAL BACKGROUND COMMON TO ALL CLAIMS FOR RELIEF
88. Section 215-a ofNew York State's Labor Law prohibits employers from requiring quotas in the issuance of summons, tickets or number of arrests, and also prohibits employers from penalizing employees for not meeting such illegal quotas or measuring an employee productivity by a failure to meet a quota. Section 215 of the Labor Law further prohibits employers from penalizing employees for reporting or complaining about the employer's violation of the Labor Law. In direct violation ofthese provisions, under the leadership of the named defendants, the named plaintiffs and all unnamed members of the prospective class have been compelled, instructed, directed and or mandated to perform a certain number of arrests, perform a certain number of stops and or stop and frisks, and issue a certain number of summons, per month. Similarly, the named plaintiffs and members of the prospective class have been punished by the defendants, by being harassed, threatened with termination and other negative consequences, received negative evaluations, lost compensation, lost overtime, lost vacation days earned, punitive postings, punitive transfers, denial of upgrades and promotions, denial of overtime, and denial of accrued time earned, for failure to meet the

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 34 of 49

mandated numbers of arrests, stop and or stop and frisks, and the mandated number of summons.

89. The illegal quota system is used in every work operational unit or sub-unit of the NYPD throughout the five boros ofNew York and affects all police officers who have to comply or face punitive consequences and lower performance evaluations, however, minority police officers such as the plaintiffs suffer harsher disciplinary actions and are subjected to lower performance evaluations, than their white counterparts, as a means by the defendant to compel plaintiff's compliance with the ascribed quotas. 90. The named plaintiffs and all members of the prospective class have suffered actual damages by being harassed, threatened with termination, given negative evaluations, lost compensation, lost overtime, lost vacation days earned, lost time off, denial of overtime, denial of upgrades, denial of promotions, punitive postings and punitive transfers, all for failure to meet the mandated quota of arrests, stops and summons.

91. The named plaintiffs and all members of the prospective class have been subjected to disparate and racially discriminatory performance evaluations and disciplinary actions by the defendants as a means of compelling the Latino and AfricanAmerican plaintiffs to enforce racially discriminatory quotas in the predominantly minority communities targeted by the NYPD.

1sT CAUSE
(Claims of named penalties imposed

OF ACTION AGAINST ALL plaintiffs and class members on the plaintiffs contrary to

DEFENDANTS for illegal quotas and Labor Law § 215-a)

92. The allegations in paragraphs 1 through 92 above are incorporated herein as if

fully set forth below.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 35 of 49
93. The defendant the City ofNew York, by its police department, the NYPD, and through its agents, the named individual defendants, and the individual defendants in their personal and official capacities, have compelled, instructed, directed and mandated the plaintiffs to perform a certain number of arrests, perform a certain number of stops and stop and frisks, and issue a certain number of summons, per month. In other words, the defendants have maintained an illegal quota system for police officers for arrests and summonses, and in measuring the productivity of the plaintiffs. 94. That the defendant, the City ofNew York, by its Police Department, the NYPD, and through its agents and employees, the named individual defendants and the individual defendants in their personal and official capacities, have penalized the plaintiffs for failure to meet the illegal quotas by threatening the plaintiffs with termination, giving the plaintiffs negative evaluations, denying the plaintiffs compensation, denying the plaintiffs overtime, denying the plaintiffs vacation days earned, denying the plaintiffs time off, denying the plaintiffs overtime, denying the plaintiffs upgrades, denying the plaintiffs promotions, subjecting the plaintiffs to punitive postings and punitive transfers, and otherwise illegally punishing the plaintiffs by subjecting the plaintiffs to negative employment conditions for failure to meet the illegal quota. 95. That the defendants actions in maintaining the quota and penalizing the plaintiffs for failing to meet the quota are prohibited by New York State Labor Law, Section 215-a. 96. That the named plaintiffs and prospective class members have suffered damages as a result of the imposition of the illegal quotas and the punitive actions taken against them for failure to meet the illegal quotas.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 36 of 49
2ND CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members against all defendants for racially discriminatory employment practices in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981) 97. The allegations in paragraphs 1 through 96 above are incorporated herein as if fully set forth below. 98. The named plaintiffs and members of the prospective class are Hispanic and African-American police officers patrolling in areas where the residents are predominantly minorities as in Latino and African-American. 99. The illegal quota system maintained by the defendants has a negative effect on the community as it leads to unreasonable and un-warranted arrests, stops, stop and frisks, and summonses. 100. The illegal quota system implemented by the defendants has a disproportionate and racially discriminatory effect on the minority community because the NYPD targets the minority community to obtain the numbers required by the quota system. 101. The named plaintiffs and members ofthe prospective class are unwilling and unable to meet and enforce the illegal quotas on their own minority communities due to its racially discriminatory nature and the fact that it leads to unfair, unreasonable and unwarranted enforcement actions against their own minority community. 102. The named plaintiffs and all members ofthe prospective class have been subjected to disparate and racially discriminatory performance evaluations and disciplinary actions by the defendants as a means of compelling the Latino and AfricanAmerican plaintiffs to enforce racially discriminatory quotas in the predominantly minority communities targeted by the NYPD.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 37 of 49
103. The racially disparate performance evaluations and the racially disparate disciplinary actions to which the plaintiffs have been subjected, constitute a deprivation of the rights conferred on the plaintiffs by the Civil Rights Act of 1866,42 U.S.C. § 1981. Section 1981 provides in pertinent part that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts.....and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens". 104. A contract of employment exists between each of the plaintiffs and defendant the City ofNew York, in that the City and each plaintiff agreed that each plaintiff would be hired by the New York City Police Department to work for it in a specific position described in the complaint, at a specific average rate, for an indefinite period of time. 105. Defendants actions as set forth herein prevented plaintiffs and prospective class members from enjoying and enforcing their employment contract rights on the same basis as white persons, thereby denying said rights in violation of the Civil Rights Act of 1866, 42 U.S.C. Section 1981, as amended. 106. Defendants actions had both the intention and effect of depriving plaintiffs of the rights and benefits of their contractual relationship with the Department on the basis of their race, color and or national origin. 107. The named plaintiffs and members ofthe prospective class have suffered damages as a result of such deprivation including but not limited to loss of promotions and upgrades, loss of earned time off, punitive postings, punitive transfers, and the plaintiffs and class members have suffered distress, humiliation, great expense, embarrassment and damage to their reputations.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 38 of 49
108. The actions of defendants in depriving plaintiffs of their civil rights as hereinbefore stated, were willful and malicious. As a result of Defendant's reckless and intentional acts, plaintiff and members of their class are entitled to compensatory damages and punitive damages in an amount to be determined at trial.
vd(3CRieo»fllaeaCnitmdAioasUnnoStofsEfnf4Ooa2mrFUreAad.ScCpi.TCalalI.liOyn§N1tdi9ifAs8fcs5GraiaAmnnIddiNncS§al1Ttao9srAs8y6Lm)eLemmDpbEleoFrysEmNaegDnatAinpNsrTtacSatlilces in 109. The allegations in paragraphs 1 through 108 above are incorporated herein as if fully set forth below. 110. Upon information and belief, Defendants have and continue to conspire with and amongst each other to deny plaintiffs and members of their class the rights, privileges and immunities, and the equal protection of the laws to which they are entitled under the constitution and laws of the United States in violation of 42 U.S.C. Section 1985. 111. As a direct result of this conspiracy, the defendants injured plaintiffs and deprived them of having and exercising their rights and privileges under the Constitution and laws of the United States. 112. The actions and omissions ofDefendants described herein were willful and malicious and based upon invidious racial and class based animus. The purpose of the aforementioned conspiracy was to violate the civil rights of the plaintiffs and as such, violated 42 U.S.C. Section 1985. 113. All of the individual defendants, as public officials, had notice of the conspiracy set forth above, in violation of Section 1985 and failed and refused to prevent, prohibit and ameliorate the aforementioned conspiracies notwithstanding their abilities to do so.

- ---------- - - - - - -
Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 39 of 49
Said failure and/or refusal to prevent, prohibit and/or ameliorate constituted a violation of
42 u.s.c. § 1986.
114. The actions of Defendants, in depriving plaintiffs of their constitutional and Civil
Rights as hereinbefore stated, were willful and malicious. As a result of Defendants reckless and intentional acts, plaintiffs and members of their class are entitled to compensatory damages and punitive damages in an amount to be determined at trial.
4TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members against all vdieofleantdioanntosffNorewraYcioarlklySdtaistcerHimuimnaatnorRyigehmtsplLoaywm,eNntewprYacotrikces in Executive Law §290 ) 115. The allegations in paragraphs 1 through 114 above are incorporated herein as if fully set forth below. 116. This claim is brought pursuant to the supplemental jurisdiction of the Court, under New York State Human Rights Law, Executive Law§§ 290 et seq. 117. Executive Law §290 provides in pertinent part that "the opportunity to obtain employment without discrimination because of race or national origin is hereby recognized as and declared to be a civil right". Executive Law § 296 provides in part as follows "it shall be an unlawful discriminatory practice for an employer ..... because of an individual's age, race, creed, color, national origin.... to discriminate against such individual in compensation or in terms, conditions or privileges of employment." 118. Plaintiffs are members of a protected class as defined by New York Executive Law §296.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 40 of 49
119. The named plaintiffs and members ofthe prospective class are Hispanic and African-American police officers patrolling in areas where the residents are predominantly minorities as in Latino and African-American. 120. The illegal quota system maintained by the defendants has a negative effect on the community as it leads to unreasonable and un-warranted arrests, stops, stop and frisks, and summonses.
121. The illegal quota system implemented by the defendants has a disproportionate and racially discriminatory effect on the minority community because the NYPD targets the minority community to obtain the numbers required by the quota system. 122. The named plaintiffs and members of the prospective class are unwilling and unable to meet and enforce the illegal quotas on their own minority communities due to its racially discriminatory nature and the fact that it leads to unfair, unreasonable and unwarranted enforcement actions against their own minority community. 123. The named plaintiffs and all members of the prospective class have been subjected to disparate and racially discriminatory performance evaluations by the defendants as a means of compelling the Latino and African-American plaintiffs to enforce racially discriminatory quotas in the predominantly minority communities targeted by the NYPD. 124. The racially disparate performance evaluations and the racially disparate disciplinary actions to which the plaintiffs have been subjected to constitute unlawful discrimination on the basis of race and national origin in the compensation, terms, conditions or privileges of employment contrary to the New York State Human Rights Law, New York Executive Law §296.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 41 of 49
125. The named plaintiffs and members of the prospective class have suffered damages as a result of such deprivation. 126. Plaintiffs and members of the class they represent have suffered and will continue to suffer irreparable injury caused by defendant's illegal conduct. 127. As a direct and proximate result of defendant's unlawful acts, plaintiffs and members of the class they represent have suffered and will continue to suffer loss income, loss of upgrades and promotions, loss of time earned, forced overtime during scheduled time off, loss of earned time off, and loss of other employment benefits and plaintiffs have suffered and continue to suffer distress, humiliation, great expense, embarrassment and damage to their reputations. 128. The actions of the defendants in depriving plaintiffs and members of the class they represent of their constitutional and civil rights as hereinbefore stated, were willful and malicious. As a result of defendant's reckless and intentional acts, plaintiffs and members of their class are entitled to compensatory and punitive damages in an amount to be determined at trial.
5TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members against all defendants for racially discriminatory employment practices in violation of New York City Human Rights Laws) 129. The allegations in paragraphs 1 through 128 above are incorporated herein as if fully set forth below. 130. Defendant the City ofNew York as an employer, pursuant to New York City Human Rights Law, have unlawfully discriminated against plaintiffs and members of the class they represent because of their race and national origin in the terms, conditions, and

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 42 of 49

privileges of employment and have penalized and disciplined and otherwise taken adverse action against Plaintiffs in violation ofNew York City Local Law 59 of 1986 as amended by Local Rule 39 of 1991, §8-207. 131. Plaintiffs have served a copy of this complaint upon the New York City Commission of Human Rights and the New York City Corporation Counsel. 132. Plaintiffs and members of the class they represent have suffered and will continue to suffer irreparable injury caused by defendant's illegal conduct. 133. As a direct and proximate result of defendant's unlawful acts, plaintiffs and members of the class they represent have suffered and will continue to suffer loss of income, loss of upgrades and promotions, loss of time earned, forced overtime during scheduled time off, loss of earned time off, and loss of other employment benefits and plaintiffs have suffered and continue to suffer distress, humiliation, great expense, embarrassment and damage to their reputations. 134. The actions of the defendants in depriving plaintiffs and members ofthe class they represent of their constitutional and civil rights as hereinbefore stated, were willful and malicious. As a result of defendant's reckless and intentional acts, plaintiffs and members of their class are entitled to compensatory and punitive damages in an amount to be determined at trial.

6TH CAUSE OF ACTION AGAINST ALL DEFENDANTS

(Individual claim of Edreweene Raymond, for violation of his first amendment rights

against to free

all defendants expression)

135. Defendants have violated the rights ofPlaintiffEdreweene Raymond under the

First Amendment to the United States Constitution and 42 U.S.C. §1983.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 43 of 49

136. As a result ofthis violation, plaintiff's Edreween Raymond is entitled to a declaration that his first amendment rights were violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorney's fees.

7TH CAUSE OF ACTION AGAINST ALL DEFENDANTS ua(IgnnaddienirvsitAdarultalilcdlceelfa1ein,md§8aonfotnfsatfhmoeredNviepowllaaYitniootrnikffoSEftdtahrteeeiwrCeroeinngsehtitRttuaotyimfornoe)ne dspeech 137. Defendants have violated the rights ofplaintiffEdreweene Raymond under Article 1, §8 ofthe New York State Constitution. 138. As a result of this violation, plaintiffEdreweene Raymond is entitled to a declaration that his New York Constitutional right to free speech was violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorneys fees.

8TH CAUSE OF ACTION AGAINST ALL DEFENDANTS

(Individual claim of plaintiff Adhyl Polanco against all

defendants for expression)

violation

of

his

first

amendment

rights

to

free

139. Defendants have violated the rights of plaintiff Adhyl Polanco under the First Amendment to the United States Constitution and 42 U.S.C. §1983. 140. As a result of this violation, plaintiff Adhyl Polanco is entitled to a declaration that his first amendment rights were violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorney's fees.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 44 of 49

9TH CAUSE OF ACTION AGAINST ALL DEFENDANTS

(Individual claim of plaintiff Adhyl Polanco against all

defendants 1, §8 of the

for violation of his right to free New York State Constitution)

speech

under

Article

141. Defendants have violated the rights of plaintiff Adhyl Polanco under Article 1, §8 of the New York State Constitution.

142. As a result of this violation plaintiff Adhyl Polanco is entitled to a declaration that his first New York Constitutional right to free speech was violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorneys fees.

v(lOIinTodHlaitvCiioAdnuUaoSlfEchliOasiFmfiArPsCteTdaIrmOoeNSnedArmrGaeAnnotINraiSggTahitAnssLttoLaflDlreEdeeFfeEexNnpdDreaAsnsNtisoTfnSo)r 143. Defendants have violated the rights of Plaintiffs Pedro Serrano under the First Amendment to the United States Constitution and 42 U.S.C. §1983. 144. As a result of this violation plaintiff Pedro Serrano is entitled to a declaration that his first amendment rights were violated, an injunction ordering the defendants to refrain from further violation, compensatory damages, punitive damages, and an award of attorneys fees.

11TH CAUSE OF ACTION AGAINST ALL DEFENDANTS

(Individual claim of plaintiff Pedro Serrano against all

defendants 1, §8 of the

for violation of his right to free New York State Constitution)

speech

under

Article

145. Defendants have violated the rights ofplaintiffPedro Serrano under Article 1, §8 ofthe New York State Constitution.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 45 of 49
146. As a result of this violation plaintiff Pedro Serrano is entitled to a declaration that his New York Constitutional right to free speech was violated; an injunction ordering the defendants to refrain from further violation compensatory damages; punitive damages; and an award of attorneys fees.
ed(1Ix2enTpfdeHrnievCdsisaAdinouUtnaSs)lEfcolOra iFvmiAoslCaotTfi opI Onl aNoi nfAthiGfifsADfIierNrsSrt Tiac mkAeW LnLadlmDl eEernFatEgrNai giDnhAsttsNatTol lSf r e e 147. Defendants have violated the rights of Plaintiff Derrick Waller under the First Amendment to the United States Constitution and 42 U.S.C. §1983. 148. As a result of this violation, plaintiff Derrick Waller is entitled to a declaration that his first amendment rights were violated; an injunction ordering the defendants to refrain from further violation; compensatory damages; punitive damages; and an award of attorney's fees.
d1(1I3,enTf§deH8nivCodifaAdntuUhtasSelEfNcolOerawiFvmiYoAoloCafrtTkpioIlSOnatiNanottfeAihfGCfisDoArneIisrNgtrhiSitctTukttoAiWoLfnraL)elelDersEpaFegeEacNihnDsuAtnNadleTlrSArticle 149. Defendants have violated the rights of plaintiff Derrick Waller under Article 1, §8 of the New York State Constitution. 150. As a result of this violation plaintiff Derrick Waller is entitled to a declaration that their his New York Constitutional right to free speech was violated; an injunction ordering the defendants to refrain from further violation; compensatory damages; punitive damages; and an award of attorneys fees.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 46 of 49

14TH CAUSE OF ACTION AGAINST ALL DEFENDANTS

(Individual defendants expression)

claim of plaintiff Sandy for violation of his first

Gonzalez against amendment rights

all to

free

151. Defendants have violated the rights of plaintiff Sandy Gonzalez under the First Amendment to the United States Constitution and 42 U.S.C. §1983. 152. As a result of this violation, plaintiff Sandy Gonzalez is entitled to a declaration that his first amendment rights were violated; an injunction ordering the defendants to refrain from further violation; compensatory damages; punitive damages; and an award of attorney's fees.

15TH CAUSE OF ACTION AGAINST ALL DEFENDANTS

(Individual defendants 1, §8 of the

claim of plaintiff Sandy Gonzalez, against all for violation of his right to free speech under New York State Constitution)

Article

153. Defendants have violated the rights of plaintiff Sandy Gonzalez under Article 1, §8 ofthe New York State Constitution.

154. As a result of this violation, plaintiff Sandy Gonzalez is entitled to a declaration that his New York Constitutional right to free speec were violated; an injunction ordering the defendants to refrain from further violation; compensatory damages; punitive damages; and an award of attorney's fees.

16TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members for a declaratory judgment)
155. The allegations in paragraphs 1 through 155 above are incorporated herein as if fully set forth below.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 47 of 49
156. Plaintiffs and all putative class members are entitled to a declaratory judgment that the NYPD's current performance evaluation system and or productivity standards for police officers is an illegal quota system in violation ofNew York State's Labor Law§ 215-a.
17TH CAUSE OF ACTION AGAINST ALL DEFENDANTS (Claims of named plaintiffs and class members for a permanent injunction)
157. The allegations in paragraphs 1 through 156 above are incorporated herein as if fully set forth below. 158. Plaintiffs and all putative class members are entitled to a preliminary and permanent injunction, enjoining defendants the City ofNew York and the NYPD from using the number of arrests and or the number of summonses performed by a police officer as a performance evaluation standard or a productivity standard.
VICARIOUS LIABILITY 159. Defendant the City ofNew York is vicariously liable for the acts, omissions and conduct of its employees and agents, including but not limited to, all named individual defendants herein, performed within the scope of their employment, duties and responsibilities.
WHEREFORE, the named Plaintiffs and other members of the class they seek to represent, pray that the Court will:

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 48 of 49
1). Issue an order certifying this action as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure in the manner described above herein, with the named Plaintiffs as class representatives; 2). Issue a class-wide judgment declaring that the NYPD's current performance evaluation system and or productivity standards for police officers is an illegal quota system in violation ofNew York State's Labor Law§ 215-a. 3). Issue an order permanently enjoining the City ofNew York and the NYPD from using the number of arrests and or the number of summonses performed by a police officer as a performance evaluation standard or productivity standard. 4). Issue an order permanently enjoining the City ofNew York and the NYPD from continuing its racially disparate treatment of Hispanic and African-American police officers in performance evaluations and disciplinary actions. 5). Award compensatory damages in the first, second, third, fourth and fifth causes of action, to the named plaintiffs individually, and their class members, against the defendants for the unlawful negative employment actions taken against them including loss of benefits, loss of earned time off, loss of upgrades and promotions, and loss of overtime.
6). Issue an order for damages requiring the defendants to reimburse and make whole, any and all plaintiffs and members of their class for any and all benefits they would have received had it not been for defendant's illegal actions including, back pay with interest, benefits and seniority from the time of the Defendant's illegal actions taken against them.

Case 1:15-cv-06885-LTS Document 31 Filed 12/10/15 Page 49 of 49

7). With respect to the first, second, third, fourth and fifth causes of action, an award of compensatory damages to the named plaintiffs individually and to their class members for the pain, suffering, emotional distress, loss of dignity, humiliation and damages to reputation and livelihood endured by named plaintiffs and members ofthe class in amounts that are fair, just and reasonable, to be determined at trial; 8). Awards of compensatory damages to plaintiffs Raymond, Polanco, Serrano,
action for violations of their rights to free speech pursuant to the First Amendment of the United States and pursuant to the Article 1, §8 of the New York State Constitution. 9). An award of punitive damages to plaintiffs and members of the class against all defendants except the defendant the City ofNew York, in an amount to be determined at trial.
10). Award plaintiffs all costs of this action and reasonable attorneys' fees, as provided for in 42 U.S.C. § 1988 and 42 U.S.C. § 1920. 11). An award to plaintiffs and their class members of such other and further relief as the Court deems appropriate and equitable, including injunctive and declaratory relief as may be required in the interest ofjustice.

New York, New York December :/ , 2015

By: _ ____::=s~~ Chukwuemeka okor (C - 038) 82 Wall Street- Suite 610 New York, New York 10 ·05 (212) 785-1060

 
 Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 1 of 28
15 Civ.06885 (LTSXHP) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEV/ YORK
EDREWEENE RAYMOND, et al., individually and on behalf of a class of all others similarly situated,
Plaintifß,
-against-
THE CITY OF NEV/ YORK, THE MAYOR OF THE
CITY OF NEV/ YORK, BILL de BLASIO, in his
individual and official capacity, COMMISSIONER WILLIAM J. BRATTON, in his individual and official capacity, NYPD CHIEF OF DEPARTMENT JAMES P. O'NEILL, in his individual and official capacity,
AND NYPD COMMANDING OFFICER OF PATROL SERVICES, BUREAU CHIEF CARLOS M, GOMEZ, in his individual and official capacity,
Defendants
MEMORANDUM OF LA\ry IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Defendants
100 Church Streeî, Room 2-139 New York, N.Y. 10007-2601
Of Counsel: Kathleen M. Comfrey
Tel: (212) 356-2435 kc o ryfi qt@,l aw. ryt c. g ov Law Manager No.: 2015-044359

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 2 of 28

TABLE OF CONTENTS

Page(s)

Preliminary Statement

Statement of Facts

Standard of Review

Argument

I.

The Amended Complaint Fails to State a

Claim for Employment Discrimination Under

42 U.SC. $ 1981 or the Equal Protection Clause

A. The Amended Complaint Fails to Plausibly
Allege Purposeful Race or National Origin Discrimination

B. The Amended Complaint Fails to Plausibly Allege
Personal Involvement of the Individual Defendants

II. The Amended Complaint Fails to State a Claim Under 42 U.S.C. $$ 1985 or 1986
A. Section 1985
B. Section 1986
III. The Amended Complaint Fails to State a Due Process Claim for Deprivation of Benefits
IV The Amended Complaint Fails to State a Claim under State and City Human Rights Law
V. The Courl Lacks Subject Matter Jurisdiction over Plaintiffs' N.Y. Labor Law $ 215-a Claims because Plaintiffs Failed to Exhaust their Administrative Remedies
VI Plaintiffs'New York Constitutional Claims Should Be Dismissed as They Mirror the Federal Constitutional Claims
Conclusion

I
.2 J 5
5 5 10
11 11 14 15 17
18 22 22

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 3 of 28

TABLE OF AUTHORITIES
Cases
Albert v. Carovano, 8s1 F.2d 561 (2d Cir. 1988)....
Alvarez v. City of New York, No. 11 Civ.5464 (LAK), 2012U.5. Dist. LEXIS 176840 (S.D.N.Y. 2012)
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S.2s2 (1979)
Ashcroft v. Iqbal, s56 U.S. 662 (2009)..
Aspilaire v. I(yeth Pharm., Inc., 612 F . Supp. 2d 289 (S.D.N.Y. 2009)
Bell Atl. Corp. v. Twombly, ssO u.s. s44 (2007)
Bermudez v. City of New York,
783 F. Supp. 2d s60 (S.D.N.Y. 20Il)
Brisbane v. Milano, 443 Fed. Appx. 593 (2d Cir. 2011)
Buckv. Bd. of Elections, s36 F.2d 522 (2d Cir. 1976)
Cameron v. Church,
253 F. Supp. 2d 6rI (S.D.N.Y. 2003) .
Cassidy v. Scoppetta, 365 F. Supp. 2d283 (E.D.N.Y. 200s)..
Catapano-Fox v. City of New York, No. 14 CV 8036 (KPF), 2015 U.S. Dist. Lexis 75875 (S.D.N.Y. June 11,
20ts)
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (198s)
Cort v. Ash, 422U.5.66 (197s)..
l1

Page(s)
....1
6,7
...passtm
l7 4,8, 13
10 9
15 14
t6
6 21

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 4 of 28

Dilworth v. Goldberg, 914F. Supp. 2d 433 (S.D.N.Y. 2012)
Dones v. City of N.Y., 2008 U.S. Dist. LEXIS 53681 (S.D.N.Y. July 9,2008).
Ehrlichv. Dept. of Educ. of the City of N.Y., 2013 N.Y. Misc. LEXIS 5202 (N.Y.Srrp.Ct. Nov. 7,2013).
Elec. Comm. Corp. v. Toshiba Am. Consumer Prods., Inc., r29 F.3d240 (2d Cir. 1997)
Flores v. City of Mount Vernon, 41 F. Supp.2d439 (S.D.N.Y. 1999)
Gen. Bldg. Contractors Ass'nv. Pennsylvania, 4s8 U.S. 37s (t982)
Graham v. Henderson, 89 F.3d 7s (2d Cir. 1996).
Guan N. v. New York City Dep't of Educ., No. 11 Civ.4299 (AJl\),2013 U.S. Dist. LEXIS2204 (S.D.N.Y. Ian.7,2013)...
Hartline v. Gallo, 546 F.3d 95 (2d Cir. 2008)
Healy v. City of N.Y. Dept. of Sanitation, 04-CV-7344 (DC),2006 U.S. Dist. LEXIS 86344 (S.D.N.Y. Nov. 22, 2006)
J.L. v. Eastern Suffolk Boces, No. l4-CV-4565 (ADS), 2015 US Dist. Lexis 84759 (E.D.N.Y. Iune29, 201s)
Jeter v. New York City Department of Educ., 549 F. Supp. 2d 295 (E.D.N.Y. 2008) .....
Littlejohn v. City of New York, 795 F.3d 291 ...........
Marcel v. United States, No. l2-CV-4404,2011 U.S. Dist. LEXIS 156517 (RRM), (E.D.N.Y. Nov. 8, 2012)
McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001)

..t4
79,20
4 22
6,7
.. 15 6
t4
20
15
..........14 4
...... I 3 16

lll

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 5 of 28

Mian v. Donaldson, Lukin, & Jenrette Sec., 7 F.3d 1085 (2d Cir. 1993)
Munafo v. Metropolitan Transp. Auth., 98-CV-4572 (ERK),2003 U.S. Dist. LEXIS 13495 (E.D.N.Y. Ian.22,2003)
Phillips v. Girdich, 408 F.3d r24 (2d Ctu. 2oo5)..
Posr v. Court Officer Shield No. 207, 180 F.3d 409 (2d Cir. 1999)........
Pyke v. Cuomo, 258 F.3d 107 (2d Cir. 2001)..
Rosa R. v. Connelly,
889 F.2d 43s (2d Cir. 1989)
Sbarra v. Port Auth. of New York & New Jersey,
10 Cry. 8580 CM, 201 I U.S. Dist. LEXIS 102724 (S.D.N.Y. Sept. 9, 2011)
Shaw v. Baldowski, 747 N.Y.S.Zd 136 (Sup. Ct. Albany Co.2002) ,
Simpson ex rel. Simpson v. Uniondale Union Free School Dist., 702 F. Supp. 2d 122 (E.D.N.Y. 2010)
Stewarf v. City of New York, I 1 CV 6935 (CM),2012 U.S. Dist. LEXIS 96998 (S.D.N.Y July 10, 2012)...
Thomas v. Roach,
165 F.3d 137 (2d Cir. 1999)
Vlahadamis v. Kíernan, 837 F. Supp.2d131 (E.D.N.Y.2011) ($ 1983)..
Watson v. City of New York,
92F.3d3t (2d Cir. 1996)...
Whidbee v. Garzarelli Food Specialties, (nc.,223 F .3d 62 (2d Cir. 2000)
Wimmer v. Suffilk Cty. Police Dep't, 176F.3d 125 (2d Cir. 1999) .......
Wright v. City of Syracuse, 2014 U.S. Dist. LEXIS 44524 G\r.D.N.Y. Mar. 31,2014) ...
l4rright v. Smith,
2t F.3d 496 (2d Cir.1994)
IV

5, 12
6 15
10 16 ..21 13
15, 16
t2 l0 2t l0
18 22 10

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 6 of 28

Statutes 42 U.S.C. $ 1981..... 42 u.S.C. $ 1e83(1) 42 U.S.C. $ 198s............. 42 U.S.C. $ 198s(3)........ 42 U.S.C. $ r986.............
N.Y. Civil Service Law $ 75-b.......... N.Y.C. Human Rights Law.......... N.Y. Exec. Law. $296 N.Y. Labor Law $ 215-a.............. N.Y. Labor Law $ 215-a(1) Other Authorities N.Y. Const. Art. 1, $ 8.....
Fed. R. Civ. P. 12(bX6)...
U.S. Const. Amend. XIV.

l2
1,3, ll,12,14, 15
,.......12, 13, 14, 15
1,3,74, 15 ..20,21 ....3,17 ....1,17
.passim ........19
22
.. -1
6

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 7 of 28
PRELIMINARY STATBMENT The named plaintiffs bring this class action on behalf of themselves and all similarly situated black and Latino police officers claiming that the New York City Police Department's ("NYPD") enforcement of an un-offrcial summons and arrest quota system violates N.Y. Labor Law $ 275-a, has a disparate impact on black and Latino police officers, and has resulted in a pattern and practice of discrimination against them. Plaintifß are attempting to enforce this state law in federal court by invoking three provisions of the Civil Rights Act of 1866, each of which requires a showing of intentional discrimination:42 U.S.C. $$ 1981, 1985, and 1986. Plaintifß also assert the same claim under the Human Rights Laws of New York State and City, and N.Y. Labor Law $ 215-a. Additionally, five of the twelve named plaintiffs assert individual free
speech claims under federal and state law.
The Amended Complaint should be dismissed in part on the following grounds. First, plaintiffs failed to plead facts permitting a plausible inference of intentional racial or national origin discrimination, an element of all Section 1981 and Equal Protection claims. Moreover, the Section 1981 and Equal Protection claims against the individually named defendants must be dismissed because plaintiffs failed to plead facts showing that they were directly and personally responsible for the purported unlawful conduct. Second, the Section 1985 and 1986 claims must be dismissed for failure to plead a conspiracy motivated by purposeful or class-based motivation or oveft acts by any of the alleged co-conspirators. They also must be dismissed under the intracorporate conspiracy doctrine because all of the alleged conspirators are officials or employees of the City. Third, plaintiffs fail to state a constitutional claim of deprivation of benefits because they have constitutionally adequate process available under their collective bargaining agreement and state law. Fourth, plaintiffs fail to state a plausible claim for intentional discrimination or
retaliation under State or City law. Fifth, the Courl lacks subject matter jurisdiction over

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 8 of 28
plaintiffs' N.Y. Labor Law $ 215-a claim because plaintiffs failed to grieve these claims pursuant
to the terms of the applicable collective bargaining agreement. Sixth, plaintiffs' state
constitutional claims should be dismissed as they minor their federal law claims. STATEMENT OF FACTSI
The twelve named plaintiffs work in various precincts and divisions of the NYPD. See
Declaration of Kathleen M. Comfrey ("Comfrey Decl."), Exhibit A, Amended Complaint ("Compl.")', nn 48-82. All claim that they were required to meet certain monthly quotas for arrests and summonses, but were unwilling to do so. Id. All claim that they suffered adverse consequences for failing to meet the unofficial quotas. Id. The adverse consequences vary by plaintiff, but include low evaluation scores, undesirable posts, punitive transfers, denial of
oveftime and time off, mandatory overtime, improperly conducted investigations, unwarranted disciplinary penalties, performance monitoring, and threats of termination. Id.
All of plaintiffs' claims turn on the alleged imposition of illegal quotas and penalties in
violation of N. Y. Labor Law $ 215-a. See, e.g., Compl. I112, 88-91. Plaintiffs contend that the illegal quota system is "used in every work operational unit or sub-unit of the NYPD throughout the five boros of New York and affects all police officers who have to comply or face punitive
consequences and lower performance evaluations . . . ." Id. fl 89. Plaintiffs claim that under this system, minority officers "suffer harsher disciplinary actions and are subjected to lower
performance evaluations, than their white counterparts, as a means by the defendant [sic] to
compel plaintiffs [sic] compliance with the ascribed quotas." Id. Plaintifß characferize this
quota system as "discrimination" and contend that it not only violates N.Y. Labor Law $ 215-a,
' For purposes of this motion to dismiss only, the facts alleged in the Amended Complaint are
taken to be true.
2 All references to the Amended Complaint are to Ex. A of the Comfrey Declaration.
2

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 9 of 28
but it also violates 42 U.S.C. $$ 1981, 1985, and 1986, and New York State and City Human
Rights Law. Id.
The Amended Complaint, while rife with conclusory allegations, is devoid of factual
allegations that support a plausible claim of purposeful race and national origin discrimination or
retaliation claims. A number of the allegations pertain to the complaints in or press accounts of other lawsuits. Compl. T'1Ì 8-17. Others are alleged upon information and belief. Id.nn20-21. The only racially derogatory comment alleged is attributed to a supervisor, Executive Officer Materasso, who is not named as a defendant in this action. Id. n 62 (Materasso, the deputy
commandant of the 40th Precinct, allegedly referred to the residents of that precinct as
"animals").
With the exception of Commissioner Bratton, the allegations as to the individual
defendants are limited to a general description of their job responsibilities, coupled with the
conclusion, that each of them "knew or should have known of the customs, practices and policies
described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community'and minority officers" and each "condoned, ratified and/or authorized such practices and policies."
Compl. nn 4447. The plaintiffs do acknowledge, however, that when Commissioner Bratton
took office in January 2014, "he promised to end quotas and the numbers-driven policing culture
championed by his predecessor . . . stating 'l want to focus on the quality of police actions, with
"' less emphasis on numbers and more emphasis on actual impact. Id. n 15.
STANDARD OF REVIE\ry To survive a motion to dismiss under Rule l2(b)(6),"a complaint must contain sufficient factual matter, accepted as true, 'to state a claim for relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Arl. Corp. v. Twombly,550 U.S. 544, 510
3

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 10 of 28
(2007)). When deciding whether a plaintiff states a facially plausible claim, the court may not
"'assume that the [plaintifÍl can prove facts that it has not alleged . . . ."' EIec. Comm. Corp. v.
Toshiba Am. Consumer Prods., Inc., 129 F .3d 240, 243 (2d Cir. 1997) (quoting Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of Carpenters,459 U.S. 519,526 (1983)) (alteration in original)). A pleading that offers "labels and conclusions" or "a formulaic
recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does
a complaint suffice if it tenders "naked assertionfs]" devoid of "further factual enhancement."
Id. at 557. Accordingly, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations ." Ashforth
v. Iqbal,556 U.S. at 619. A complaint fails to state a claim "where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 679. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility
that a defendant has acted unlawfully." Id. at 678 (quoting Twombly, 550 U.S. af 557).
Determining plausibility is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. aT 679. The Second Circuit recently noted that, to survive a motion to dismiss, "[t]he facts required by lqbal to be alleged in the complaint need not give plausible suppofi to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation." Littlejohnv. City of New York,795F.3d297,3ll (2d Cir.2015).
4

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 11 of 28
ARGUMENT
POINT I THE AMENDED COMPLAINT FAILS TO
STATE A CLAIM FOR EMPLOYMENT
DISCRIMINATION UNDER EITHER 42
u.s.c. $ 1981 oR THE EQUAL PROTECTION
CLAUSE. Plaintiffs' Section 1981 and Equal Protection Clause claims must be dismissed because
they suffer from multiple defects. See e.g. Compl. I 1,97-108. The Amended Complaint's
allegations of discrimination fail to state a claim for relief that is plausible on its face because none of the factual allegations support an inference of intentional employment discrimination based on race or national origin. Proof of disparate impact is insufficient as a matter of law.
A. The Amended Complaint Fails to Plausibly Allege Purposeful Race or National
Origin Discrimination. "To establish a claim under Section 1981, a plaintiff must allege facts in support of the
following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." Mian v. Donaldson, Lukin, & Jenrette Sec.,7 F.3d 1085, 1087-88 (2d Cir. 1993). To plead a Section 1981 claim of discriminatory application of the law, plaintiffs
do not "generally need to plead or show disparate treatment of other similarly situated
individuals." Pyke v. Cuomo,258 F.3d 707,708-09 (2d Cir. 2001). However, they must "pleacl that the defendant acted with discriminatory purposes." Iqbal, 556 U.S. a|676. And they must allege specific facts that permit a plausible inference that the defendants acted "'because of,' not
5

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 12 of 28
merely 'in spite of,' fthe action's] adverse effects upon an identifiable group." Iqbal,556 U.S. 676-17 (citing Personnel Administrator of Mass. V. Feeney,442U.5.256,279 (1979).
Similarly, the Equal Protection Clause of the Fourteenth Amendment requires a showing of purposeful discrimination. See Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). The Equal Protection Clause "is essentially a direction that all persons similarly situated should be
treated alike." City of Cleburne v. Cleburne Living Ctr., lnc.,473 U.S. 432, 439 (1985). "A plaintiff may pursue an equal protection claim under a number of theories, including that the
defendants treated her differently than a similarly situated individual as a result of intentional or purposeful discrimination or that the defendants applied a facially neutral law or policy to her in an intentionally discriminatory race-based manner." Guan N. v. New York City Dep't of Educ., No. 11 Civ. 4299 (AJN), 2013 U.S. Dist. LEXIS 2204, 49-53 (S.D.N.Y. Ian. 7, 2013) (citing Doe v. Vill. of Mamaroneck, 462 F. Stpp. 2d 520, 543 (S.D.N.Y. 2006)).
Plaintiffs' Section 1981 and Equal Protection claims fail because the Complaint's factual allegations do not permit a plausible inference that any of the alleged adverse actions occurred as a result of intentional racial or national origin discrimination. The Supreme Coufi has made clear that Section 1981 and the Equal Protection Clause reach only purposeful discrimination. Gen. Bldg. Contractors Ass'n v. Pennsylvania,45S U.S. 375, 389-91 (1982). Moreover, citing Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264-65 (1979), the Supreme Court specifically rejected the argument that official action can be held unconstitutional solely because it results in a racially disproportionate impact. In doing so, it stated that "[Even]
if a neutral law has a disproportionately adverse impact upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a
discriminatory purpose." 458 U.S. at 390 (internal citations omitted); see also, Catapano-Fox v.
6

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 13 of 28
City of'New York, No. 14 CV 8036 (KPF),2015 U.S. Dist. Lexis 75875,at*14-15 (S.D.N.Y. June I 1,2015)(lt "is well established that only purposeful, racially motivated discrimination - as
opposed to activity that merely has a disparate impact on racial minorities - violates Section
1981 . . . .)(internal citations omitted). Consequently, disparate impact claims, which by their nature do not require a finding of discriminatory intent, are not cognizable under Section 1981 or
the Equal Protection Clause. Here, the Amended Complaint is devoid of any factual allegations that would suppoft an
inference of discriminatory intent. It is premised on the theory that plaintiffs have been punished for failing to meet quotas or productivity standards imposed by the NYPD on all police officers. See e.g. Compl. IT 3-4, 19-20, and22. For each of the named plaintiffs, the Amended Complaint in rote fashion repeats that they were penalized for not meeting quotas and for expressing their opinions about the quota system. See e.g. Id.nn 50-51, 53-54,56-51,58,60, 6l-62,65,68,70, 73,76,79, and 82. As nothing in the Amended Complaint suggests that the alleged illegal quota system was adopted for a discriminatory pu{pose, plaintiffs' theory is not actionable under the Supreme Court decisions in Gen. Bldg. Contractors Ass'n and Arlington Heights
Moreover, plaintiffs' acknowledgement that the "illegal quota affects all police
officers who have to comply or face punitive consequences and lower performance evaluations .
. ." undermines the plausibility of plaintiffs' claim. Compl. fl 89. As the alleged quota system applied to all police officers regardless of race or national origin, common sense dictates that it was not adopted for the purpose of discriminating against black and Latino officers. Id. n 89.
Plaintiffs' allegations regarding the universal application of the quota system contradict
plaintiffs' race claim because it suggests that all police ofÍicers who failed to comply suffered
punitive consequences without regard to their race. See Albert v. Carovano, 851 F.2d 561,572
7

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 14 of 28
(2d Cir. 1988). In the Amended Complaint, plaintiffs attempted to overcome this glaring deficiency by adding the following conclusory language, unsupported by factual content:
"however, minority officers such as the plaintiffs suffer harsher penalties and are subjected to
lower performance evaluations, than their white counterparts . . . ." Compl. fl 89.
Plaintiffs also contend that they, as opposed to white officers, are disproportionately affected by the quota system "because plaintiffs being minorities working in neighborhoods
dominated by minority residents, are unwilling to perform racially discriminatory and unwarranted enforcement actions against the minority community." Compl. n n. This
allegation, however, does not support an inference of intentional discrimination; it is just another conclusory way of saying that the illegal quota system has a disparate impact on black and
Latino police officers, and as noted above, such an impact does not constitute a Section 1981 or Equal Protection Clause violation.
The Amended Complaint alleges in the most conclusory of terms that plaintiffs have been
subjected to "racially disparate performance evaluations and racially disparate disciplinary
actions." Compl. lTlJ 102-103. The Complaint states that "Defendants [sic] actions had both the
intention and effect of depriving plaintiffs of the rights and benefits of their contractual
relationship with the Department on the basis of their race, color and or national origin." Id.l
106. This is precisely the type of formulaic recitation condemned by the Supreme Coufi in Twombly,550 U.S. at 555, as it is not supporled by factual content.
In particular, plaintiffs contend that the defendants use performance evaluations "as a means of compelling Latino and African-American plaintiffs to enforce racially discriminatory
quotas in the predominantly minority communities targbted by the NYPD." Compl. n 102.
Tliey couple this bare-boned allegation with the conclusory allegation that while the performance
8

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 15 of 28
evaluation system is facially neutral, it is applied unevenly and minority officers are more likely
to be charged, investigated and harshly punished than white police officers. Id. n 26. The
Complaint contains no factual content to support this claim. Plaintiffs do not point to a single white police officer who was similarly situated and treated more favorably than an AfricanAmerican or Latino officer. They speculate that a "police officer from a precinct located in a
predominantly white residential area will receive a positive evaluation while a police offrcer from a precinct located in a predominantly minority area will receive a negative evaluation for the same exact number of enforcement actions." Id.n25. Even if that were true, it would not
support a plausible inference of racial discrimination as nothing in the Complaint suggests that the officers referenced in paragraph25 are similarly situated. As the officers are alleged to have worked in different precincts, common sense dictates that their performance evaluations would have been completed by different supervisors and they, therefore, are not similarly situated in all material respects. Nor do plaintiffs allege any facts that would support the conclusion that
minority officers in a predominantly white residential aÍea receive lower performance
evaluations or harsher penalties than their white colleagues in the same precinct. The Complaint does not plausibly state a selective enforcement claim which requires that
plaintiffs show "both (1) that fthey] were treated differently from other similarly situated
individuals, and (2) that such differential treatment was based on impermissible considerations
such as race ." Brisbane v. Milano, 443 Fed. Appx. 593, 594 (2d Cir. 2011). Plaintiffs
cannot simply recite the elements of a selective enforcement claim. Here, Plaintiffs refer only to
one specific incident of alleged selective enforcement. Plaintiff Gonzalez claims that his
supervisors conducted an un-warranted investigation into a fall and injury that he sustained on the job, but that NYPD failed to conduct an investigation of an unnamed white police officer
9

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 16 of 28
who fell under the same circumstances. Compl. fln 52-54. Aside from alleging that these officers shared the same civil service title, the Amended Complaint contains no facts that would
suggest that these officers were similarly situated or that the decision to investigate plaintiff was
motivated by his race or national origin. Id.
B. The Amended Complaint Fails to Plausibly Allege the Personal Involvement of the Individual Defendants.
It is well settled that the "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under $ 1983." thight v. Smith,2l F.3d
496, 501 (2d Cir. ß9$; Whidbee v. Garzelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir.
2000X$ 198i); Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir. l989)(affirming dismissal of
$19S3 claim against individual defendant as "fatally defective" because of failure to plead that the individual was "directly and personally responsible for the purported unlawful conduct"). A plaintiff must plead that "each Govemment-offrcial defendant, through the official's own
individual actions, has violated the Constitution." Iqbal,556 U.S. at 676, That means that:
fU]nder Section 1983 and Section 1981 supervisors can be sued
individually, without directly participating in the underlying conduct, only
if they promulgated unconstitutional policies or plans under which action occurred, or otherwise authorized or approved challenged misconduct.
Stevens v. New York, 697 F. Supp. 2d 392,400 (S.D.N.Y. 2009) (citing AlJundi v. Estate of Rockefeller,SS5 F.2d 1060, 1066 (2d Cir. 1989)). "To lay
a proper foundation for individual liability, the plaintiff must plead
"specific, nonconclusory factual allegations" to establish the participation at
the necessary mental state of the individual defendants, or [her] claims against them will be dismissed." Id. (citing Blue v. Koren,12F.3d 1075,
I 083-84 (2d Cir. 1 99s)).
Berntudez v. City of New York, 783 F. Supp. 2d 560, 602 (S.D.N.Y. 201l). Moreover, a
defendant "may not be held liable for damages for constitutional violations merely because he
held a high position of authority." Vlahadqmis v. Kiernan, 837 F. Supp. 2d 131, 752 (E.D.N.Y.
2011) ($ 1983) (citing Blackv. Coughlin,76F.3d72,74 (2d Cir. 1996).
l0

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 17 of 28
Plaintiffs' generalized and conclusory allegations regarding Mayor de Blasio,
Commissioner Bratton, Chief O'Neill, and Chief Gomez do not meet this standard. As to each, the complaint merely describes their respective high ranking City and NYPD positions and claims that each knew or should have known of the customs, practices, and policies described in the Amended Complaint and condoned, ratified andlor authorized such practices and policies. Comp. nn 44-47. The Complaint does not allege any specific facts tying any of them to any
purposeful, race-based animus in the implementation or promulgation of the alleged quota system. Nor does it allege specific, non-conclusory factual allegations demonstrating that they
approved the challenged misconduct with the necessary discriminatory animus. To the contrary,
it acknowledges that Commissioner Bratton explicitly stated that he intended to put an end to
quotas. Id. n 15.
Finally, the Amended Complaint's allegation of vicarious liability, Compl. fl 159, does
not compensate for plaintiffs' failure to allege specific facts tying the individual defendants to the alleged constitutional violations. In lqbal, the Supreme Court emphasized that "Because vicarious liability is inapplicable to Bivens and $ 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at676. Iqbal, therefore, requires dismissal of all claims against the individual defendants.
POINT II THE AMENDED COMPLAINT FAILS TO
STATE A CLAIM UNDER 42 U.S.C. $ 1985 OR
r986.
A. Section 1985
Plaintiffls' third cause of action, Compl. TI 109-l14, alleges that "[u]pon information and belief, defendants have and continue to conspire with and amongst each other to deny plaintifß
1l

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 18 of 28
and members of their class the rights, privileges and immunities, and the equal protection of the laws to which they are entitled under the laws of the United States in violation of 43 U.S.C.
1985." Id.n 112. While plaintifß do not specify the subparagraph of Section 1985 under which
they are proceeding, a faft reading of the Amended Complaint suggests that they are proceeding under subparagraph three.
Section 1985(3)3 prohibits two or more persons from conspiring for the purpose of depriving any person of the equal protection of the laws or of equal privileges and immunities under the laws. 42 U.S.C. $ 1985(3). To adequately plead a claim under Section 1985(3), a
plaintiff must allege (l) a conspiracy; (2) for the purpose of depriving a person or class of
persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiffs person or property, or a deprivation of a right or privilege of a citizen of the United States. Mian v.
Donaldson, Lu/kin & Jenrette Sec. Corp.,7 F.3d 1085, 1087 (2d Cir.l993xciting United Bhd. of
Carpenters, Local 610v. Scott,463 U.S. 825,828-29 (1983)); Thomas v. Roach,l65 F.3d 137, 146 (2d Cir. 1999xciting Traggis v. St. Barbara's Greek Orthodox Church,85l F.2d 584, 58687 (2d Cir. 1988)). Here the complaint is devoid of factual support for these elements.
To adequately plead a conspiracy claim under Section 1985(3), a plaintiff must allege that the conspiracy was motivated by "some racial or perhaps otherwise class-based, invidious
discriminatory animus." Mian,7 F.3d at 1088; Alvarez v. City of New Iorfr, No. ll Civ.5464
(LAK),2012 U.S. Dist. LEXIS 176840, at*I2(S.D.N.Y.2012)(Section 1985 conspiracy claim
dismissed because it does not allege facts even remotely suggesting a "'racial, or perhaps
3 +2 U.S.C. $ 19S3(1) prohibits a conspiracy to interfere with a federal officer's performance of
his duties and 42 U.SC. $ 1983(2) prohibits a conspiracy to obstruct justice.
12

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 19 of 28
otherwise class-based, invidiously discriminatory animus behind the conspirators' actions,"' the existence of which is essential to liability.).
A complaint containing only "'conclusory, vague, or general allegations of a conspiracy to deprive a person of constitutional rights' will be dismissed." Marcel v. United States, No. l2CV-4404,2011 U.S. Dist. LEXIS 156517 (RRM), at *12-13 (E.D.N.Y. Nov. 8, 2012)(quoting
Ostrer v. Aronwald,567 F.2d 551,553 (2d Cir. 1977)). ln Twombly, 550 U.S. at 558-59
(internal citation omitted), the Supreme Court, confronted with non-specific antitrust conspiracy allegations, noted "a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed." Here too the
parties are facing massive discovery in connection with plaintifß' wide-ranging conclusory
claims of conspiracy. This Court, therefore, should insist that plaintiffs specif,rcally allege facts supporting their conspiracy theory before allowing discovery to proceed on these class-wide
claims.
The Section 1985(3) claim also must be dismissed because plaintifß have failed to show "with at least some degree of particularity, overt acts which the defendants engaged in which were reasonably related to the promotion of the claimed conspiracy." Simpson ex rel. Simpson v. Uniondale Union Free School Dist.,702F. Supp.2d122,133 (B.D.N.Y.2010) (quoting Thomas v. Roach, 165 F.3d at 146). No such overt actions by the individual defendants have been pled in the Amended Complaint.
Even if plaintiffs had adequately pled each of the elements of a Section 1985(3) claim, their Complaint still would fail to state a Section 1985(3) claim because the intra-corporate
conspiracy doctrine immunizes the defendants from suit. "The intra-corporate conspiracy
doctrine provides that the officers, agents and employees of a single corporate or municipal
13

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 20 of 28
entity, each acting within the scope of his or her employment, legally are incapable of conspiring together." Cameron v. Church,253 F. Supp. 2d 611, 623 (S.D.N.Y. 2003); see also Jeter v. New York City Department of Educ., 549 F. Supp. 2d295,303 (E.D.N.Y. 2008x"Generally, the intracorporate immunity doctrine has been held to preclude liability when the alleged conspirators work for the same organizatioû, . . ., and 'has been extended to apply to individual members of a
single governmental entity.")(internal citations omitted). It is well established that a "Section 1985(3) claim is barred "if the conspiratorial conduct challenged is essentially a single actby a single corporation for municipal entity] acting exclusively through its own directors, officers,
and employees, each acting within the scope of his employment." Dilworth v. Goldberg, 974 F. Supp. 2d 433,465 (S.D.N.Y. 2012) (quoting Henmann v. Moore, 576 F.2d 453, 459 (2d Cir.
1978)); see also Hartline v. Gallo,546 F.3d 95,99 n.3 (2d Cir.2008) (affirming dismissal of Section 1985 conspiracy claim where defendants were the Village of Southampton, its Police Department, and Southampton police officers). As a matter of law, therefore, plaintiffs cannot
establish a Section 1985(3) conspiracy because all of the alleged conspirators are City officials and employees acting within the scope of their employment: the Mayor, NYPD's Commissioner, NYPD's Chief of Department, and NYPD's Patrol Bureau Chief. Compl. '1TI 109-114.
B. Section 1986 Claim Plaintiffs' third cause of action also alleges that "all of the individual defendants, as
public officials, had notice of the conspiracy . . . in violation of Section 1985 and failed and refused to prevent, prohibit and ameliorate the aforementioned conspiracies notwithstanding
their abilities to do so. Said failure and/or refusal to prevent, prohibit and/or ameliorate constituted a violation of 42 U.S.C.$ 1986." Compl. I113. Section 1986 creates a cause of
action against "fe]very person who, having knowledge that any of the wrongs conspired to be
14

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 21 of 28
done, and mentioned in fSection 1985], are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so do to, if such wrongful act be committed." 42 u.s.c. $ 1986.
Plaintiffs' Section 1986 claim must be dismissed because "[t]he Second Circuit has repeatedly held that a $ 1986 claim is contingent upon a valid $ 1985 claim." J.L. v. Eastern Suffolk Boces, No. l4-CV-4565 (ADS), 2015 US Dist. Lexis 84159, at*26 (E.D.N.Y. June29, 2015)(citing Wang v. Miller,356 F. App'x 516,517 (2d Cir.2009) ("Because $ 1986 claims are contingent upon a valid $ i985 claim, the District Courl was also correct in dismissing Wang's $ 1986 claim."));see also Posrv. Court Officer ShieldNo.207,180 F.3d 409,419 (2dCir.1999) ("[N]o $ 1986 claim will lie where there is no valid $ 1985 claim.") (citing Gagliardi v. Vill. of Pawling,lS F.3d 188, 194 (2dCir. 1994)). Therefore, for the reasons stated above, the Court must dismiss plaintiffs' Section 1986 claim because they have not pled a valid Section 1985(3)
claim.
Moreover, Section 1986 imposes liability only on individuals who have knowledge of discrimination prohibited under Section 1985. Graham v. Henderson, S9 F.3d 75, 82 (2d Cir. 1996). As plaintiffs have not pled any facts suggesting that the individual defendants had
knowledge of a conspiracy that was motivated by class-based discriminatory animus, the Section 1986 claim must be dismissed. Buck v. Bd. of Elections, 536 F.2d 522, 524 (2d Cir. 1976).
POINT III
THE AMENDED COMPLAINT FAILS TO STATE A DUE PROCESS CLAIM FOR
DEPRIVATION OF BENEFITS. To state a claim for violations of procedural due process, plaintiffs must allege that they
were deprived of a protected interest in liberty or property, without adequate notice or opporttrnity to be heard . Stewart v. City of New York, 1l CV 693 5 (CM), 2012 U .5. Dist. LEXIS
l5

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96998, at *42 (S.D.N.Y July I 0,2012). The Due Process claim is mentioned in paragraphs one and two of the complaint, but is not separately asserted in the enumerated claims that begin with paragraph 92. The claim should be dismissed because the Amended Complaint does not allege
what protectable property interest is at issue. Nor does it allege what process plaintifß were
deprived of.
It may be plaintiffs are claiming that they have a property interest in overtime, time off or particular job assignments. See e.g., Compl. TT 2, 66, 68,70, and 73. If so, courts in this Circuit have consistently held that municipal employees do not have a property interest in benefits such as oveftime, vacation days or particular assignments. See McMenemy v. City of Rochester, 241 F.3d279,287-88 (2d Cfu.2001)(holding that a firefighter did not have a property interest in promotion or in "Fair Consideration for Promotion"); Sbana v. Port Auth. of New York & New Jersey, 10 CV. 8580 (CM),2011 U.S. Dist. LEXIS 102724, at *34 (S.D.N.Y. Sept. 9, 2011)
(holding that there is no property interest in vacation days where "no more than a bare
expectation to a particular form of compensation" has been pled); Dones v. City of N.Y.,2008 U.S. Dist. LEXIS 53681, at*27 (S.D.N.Y. July 9,2008)("Absent extraordinary circumstances, courts in the Second Circuit have not recognized overtime, particular assignments, or the prestige of a given assignment as property interests protected by due process."); Cassidy v. Scoppetla, 365 F. Supp. 2d 283 (E.D.N.Y. 2005)("Every court in this circuit that has considered the issue of whether there exists a constitutionally protected property interest in overtime pay has answered in the negative, and with good reason.").
Finally, as plaintiffs have not pled inadequate process either under state law or their collective bargaining agreement, plaintiffs' procedural due process claim fails as a maltIer of law.
See Stev,arr v. City o.f N.Y., I I CV 6935 (CM), 2012 U.S. Dist. LEXIS 96998, at *44.
16

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 23 of 28
POINT IV THE AMENDED COMPLAINT FAILS TO STATE A CLAIM UNDER STATE AND
CITY HUMAN RIGHTS LAW FOR INTENTIONAL DISCRIMINATION.
As an initial matter, it is unclear whether plaintiffs are proceeding under a disparate
treatment theory of liability, a disparate impact theory or both. It also is unclear whether the proposed class includes all African-American and Latino police officers or just those who are
patrolling in areas where the residents are predominantly African American and Latino. Second, the State and City Human Rights laws protect employees, not citizens who are subject to unwarranted arrests, stops, stops and frisks, and summonses. Therefore, to the extent plaintiffs are basing the claim on the alleged quota system's effect on any particular community of residents or citizens, Compl. nn 120-122, the claim fails because residents and citizens are not covered by these statutes and plaintiffs do not have standing to asseft claims on these citizen's
behalf. Third, to the extent plaintiffs are asserting a discrimination or retaliation claim, there are
no facts in the complaint that support a timely and plausible claim of causation between
plaintiff s protected status (race or national origin) or protected activity under these statutes and any adverse employment action. Aspilaire v. Wyeth Pharm., Lnc.,672 F. Supp. 2d289,308-09 (S.D.N.Y. 2009)(burden is on a plaintiff to show that he complained "of unfair treatment due to hiS membership in a protected class" and not that he complained "merely of unfair treatment generally."). For example, in paragraph 35, plaintiffs allege in conclusory terms that Officer
Diaz has been penalized for reporting and complaining about illegal quotas. However, complaining about or opposing illegal quotas directed at non-employees is not a protected activity under N.Y. Exec. Law. ç 296 or N.Y.C. Local Law 59 even if those quotas have a
racially discriminatory effect upon the minority community members who are ticketed, arrested
t7

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 24 of 28
etc. See, Wimmer v. Suffolk Cty. Police Dep't,176F.3d 125,134-35 (2d Cir. 1999). Even if it
were a protected activity, there is no indication as to when Officer Diaz made the repoft, when
NYPD penalized him or what penalty he suffered as a result of the report. Therefore, there is no
factual basis supporling a causal link between the report and the action. The specific allegations
as to the other named plaintiffs are also deficient in this regard. Moteover, as the alleged quota
is applicable to all officers regardless of race, it is not plausible under a disparate treatment
theory of ,liability that the decision to adopt it was based on race or national origin
discrimination.
Foufth, the allegations about racially disparate evaluations and racially disparate
disciplinary actions are conclusory. Compl. n 26, 123-124. No facts are alleged to support a plausible claim of discrimination or retaliation based on race. Nor does the complaint include
any statistics suggesting that the evaluation system or the disciplinary process as it pertains to
quotas has a disparate impact on African-American and Latino officers.
POINT V
THE COURT LACKS SUBJECT MATTER JURISDICTION OVER PLAINTIFFS' N.Y. LABOR LAW $ 21s-A CLAIMS BECAUSE
PLAINTIFFS FAILED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES.
New York Labor Law $ 2l5-aprovides, in part, that:
No employer or his or her duly authorized agent shall transfer or in any other manner penalize or
threaten, expressly or impliedly, an employee fwho is a police officer] as to his or her employment in a
manner, including, but not limited to, a reassignment, a scheduling change, an adverse
evaluation, a constructive dismissal, the denial of a
promotion, or the denial of overtime, based in
whole or in part on such employee's failure to meet a quota, established by his or her employer or his or
her duly authorized agent, of (a) tickets or
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summonses issued within a specified period of time for violations of provisions of law for which a ticket or summons is authorizedby any general, special or
locallaw....
N.Y. Labor Law $ 215-a(l).4 Section 215-a(l) explicitly provides that "[a]ny employee so transferred or otherwise
penalized may cause to be instituted a grievance proceeding pursuant to the provisions of a collective bargaining agreement, if any, or pursuant to the provisions of section seventy-five-a of
the civil service law if no collective bargaining agreement exists." Id. It also contains a
remedial scheme that includes, among other things, compensation for loss of wages arising out of
a transfer or penalty. Therefore, Section 215-a does not expressly create a private right of action for individuals covered by a collective bargaining agreement ("CBA") that contains a grievance
proceeding. Instead, Section 215-a limits the recourse of such employees to the grievance
procedures contained in the applicable CBA.
Here, all police officers employed by NYPD, including the named plaintiffs and putative
class members, are represented by a union that negotiated a CBA with the City. Se¿ Exhibit B,
Executed Contract: Police Officers, Art. XXL5 Article XXI of that agreement specifically
provides a mechanism for bringing a grievance concerning "a claimed violation,
misinterpretation or misapplication of the rules or regulations, or procedures of the Police
a Effective September 1,2015, the day after this action was commenced, the phrase "who is a police officer" was added to this statutory provision. The amended language is bracketed. s Th. Coll.ctive Bargaining Agreement signed between Patrolmen's Benevolent Association and
the City of New York is a public record, available at
http://wwwl .nyc.gov/assets/olr/downloads/pdf/collectivebargaining lcbu79-police-patrolmensbenevolent-association-080106-to-073110.pdf. Therefore, this Court may consider it in deciding this motion. Ehrlich v. Dept. of Educ. of the Cfty of N.Y.,2013 N.Y. Misc. LEXIS 5202 (N.Y. Sup. Ct. Nov. 7, 2013) (holding that the Court may consider a publicly available collective bargaining agreement when deciding a motion to dismiss).
t9

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 26 of 28
Department affecting the terms and conditions of employment, provided that, except as otherwise provided in this Section l.a, the term "grievance" shall not include disciplinary
matters." Id. at24.
Section 215-a unambiguously authorizes the institution of a grievance proceeding to
challenge an employment action taken in whole or in part on an employee's failure to meet a summons, arest or stop quota. That is precisely how the grievance referenced in paragraph 13
of the Amended Complaint was handled. It is well settled under federal and state law that because the named plaintiffs are covered
by a CBA containing a grievance procedure, they may not sue the City of New York or its
employees, officers, or officials directly, but, instead are bound to follow the grievance
procedure outlined in the CBA and exhaust all administrative remedies prior to seeking judicial relief. See Healy v. City of N.Y. Dept. of Sanitation,04-CY-7344 (DC), 2006 U.S. Dist. LEXIS
86344, *16-17 (S.D.N.Y. Nov. 22, 2006x"Where an employee is subject to a collectively
negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions, and which contains a binding arbitration provision for all such allegations, the employee shall grieve his claims and may assert them only before an arbitrator"); Munafo v.
Metropoliran Transp. Auth. 98-CV-4572 (ERK), 2003 U.S. Dist. LEXIS 13495, *g3-g4,
(E.D.N.Y. Jan. 22,2003)(denying leave to amend to assert a cause of action under Civil Service Law $ 75 as futile because plaintiff-union member had failed to bring a grievance alleging whistleblower retaliation); Ehrlich v. Dept. of Educ. of the City of N.Y.,2013 N.Y. Misc. LEXIS 5202,7-8 (N.Y. Sup. Ct. Nov. 7, 2013)(holding that the Court lacked subject matter jurisdiction over the plaintiff's New York Civil Service Law $ 75-b claim because $ 75-b explicitly states that only employees who lack the protection of a collective bargaining agreement grievance
20

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 27 of 28
procedure may pursue an action in court under that provision and plaintiff was covered by a valid CBA that contained a grievance procedure); Shaw v. Baldowski,l4T N.Y.S.2d 136,143 (Sup. Ct. Albany Co. 2002)(an employee may bring an action under $ 75-b only where a collective bargaining agreement does not substitute its own grievance procedure for the relief provided by this statute). As such, the Court lacks subject matter jurisdiction over all claims assefted in this action pursuant to Section 215-a.
Furthermore, to the extent the named plaintiffs seek to argue that Section2T5-a creates a
private right of action, such argument fails. In determining whether a statute creates a private
right of action, courls in this Circuit consider the factors laid out by the Supreme Courl in Cort v. Ash, 422 U.S. 66, 78 (1975); Watson v. Cíty of New York,92 F.3d 31,36 (2d Cir. 1996). The
Cort factors are: (l) is the plaintiff one of the class for whose special benefit the statute was
enacted?; (2) is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?; and (3) is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? Cort,422 U.S. at 78.
Applying these factors, N.Y. Labor Law $ 215-a does not create a private right of action despite the fact that the first factor is met. With respect to the second factor, it is clear from the plain text of the statute that the legislative intent is to require employees seeking to allege a violation of Section 215-a to utilize the grievance procedure outlined in a CBA, if such grievance procedure is available to the employee. Finally, as to the third factor, the statutory scheme expressly provides for a remedy for alleged violations, i.e., filing a grievance, and therefore it would be entirely inconsistent with the underlying purpose of the legislation to imply a private right of action under Section 215-a. As such, The Cort factors demonstrate that Section 21 5-a does
21

Case 1:15-cv-06885-LTS Document 34 Filed 01/11/16 Page 28 of 28

not create an implied private right of action and, therefore, any claims based on Section 215-a must

be dismissed.

POINT VI PLAINTIFFS' NEW YORK STATE CONSTITUTIONAL CLAIMS SHOULD BE DISMISSED AS THEY MIRROR THE FEDERAL CONSTITUTIONAL CLAIMS.
Plaintiffs' constitutional claims should be dismissed because courls in this Circuit have
held that there is no private right of action for state constitutional claims if they mirror Section
1983 claims as they do here. Wright v. City of Syracuse, 2014 U.S. Dist. LEXIS 44524, *54

(N.D.N.Y. Mar. 31,2014); Flores v. City of Mount Vernon,41 F. Supp. 2d 439,446-47

(S.D.N.Y. 1999)("[No] private right of action exists for violations of the New York State

Constitution where a plaintiff has alternate damage remedies available.")

CONCLUSION

For the foregoing reasons, defendants respectfully request that the Court issue an order

granting their Motion to Dismiss the aMENDEDComplaint together with such other and further

relief as this Court deems just and proper.

Dated:

New York, New York January 17,2076

ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Defendants 100 Church Street, Room 2-139 New York, New York 10007 (2r2) 3s6-243s kcomfrey@law.nyc.gov

By

lsl

Kathleen M. Comfrey

Assistant Corporation Counsel

22

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x EDREWEENE RAYMOND, ADHYL POLANCO, PEDRO SERRANO, SANDY GONZALEZ, RITCHIE BAEZ, JULIO DIAZ, FELICIA WHITELY, ROMAN GORIS, DERICK WALLER, KAREEM ABDULLAH, OLAYOKUN OLAGOKE, and WIDMARC PIERRE, individually and on behalf of a class of all others similarly situated,

Plaintiffs,

-v-

No. 15-CV-6885-LTS-HBP

THE CITY OF NEW YORK, MAYOR OF THE CITY OF NEW YORK BILL DE BLASIO, in his individual and official capacity, FORMER POLICE COMMISSIONER WILLIAM J. BRATTON, in his individual capacity, POLICE COMMISSIONER JAMES P. O’NEILL, in his individual and official capacity, NYPD CHIEF OF DEPARTMENT CARLOS GOMEZ, in his individual and official capacity, and BUREAU CHIEF NYPD COMMANDING OFFICER OF PATROL SERVICES TERENCE MONAHAN, in his official capacity,1

Defendants. ------------------------------------------------------------x
MEMORANDUM OPINION AND ORDER

Plaintiffs Edreweene Raymond (“Raymond”), Adhyl Polanco (“Polanco”), Pedro

1

In light of personnel changes that have occurred since the initiation of the above-

captioned matter and the motion practice at issue in this Memorandum Opinion

and Order, pursuant to Federal Rule of Civil Procedure 25(d), certain current

office holders are substituted as official-capacity parties for the individuals who

formerly held these positions within the New York City Police Department

(“NYPD”). The former office holders continue to be reflected as individual-

capacity defendants. The Clerk of Court is directed to amend the case caption

accordingly.

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1

Serrano (“Serrano”), Sandy Gonzalez (“Gonzalez”), Ritchie Baez (“Baez”), Julio Diaz (“Diaz”),

Felicia Whitely (“Whitely”), Roman Goris (“Goris”), Derick Waller (“Waller”), Kareem

Abdullah (“Abdullah”), Olayokun Olagoke (“Olagoke”), and Widmarc Pierre (“Pierre”),

(collectively, "Plaintiffs") bring this civil rights action, individually and on behalf of a class of

all others similarly situated, pursuant to New York Labor Law § 215-a; 42 U.S.C. §§ 1981, 1983,

1985, and 1986; New York Executive Law §§ 290, 296; New York City Local Law 59 of 1986

as amended by Local Rule 39 of 1991, § 8-207; and New York State Constitution Article 1, § 8,

against Defendants the City of New York ("the City"), Mayor of the City of New York Bill de

Blasio ("Mayor de Blasio"), Former Police Commissioner William J. Bratton (“Former

Commissioner Bratton”), Police Commissioner James P. O'Neill ("Commissioner O’Neill"),

NYPD Chief of Department Carlos M. Gomez ("Chief Gomez"), and Bureau Chief NYPD

Commanding Officer of Patrol Services Terence Monahan ("Chief Monahan"), (Mayor de

Blasio, Former Commissioner Bratton, Commissioner O’Neill, Chief Gomez, and Chief

Monahan are, together, referred to herein as the “Individual Defendants”) (collectively,

"Defendants"). In a 17-count Amended Complaint, Plaintiffs claim that the NYPD maintains

illegal arrest and citation quotas that are focused disproportionately on areas in which minorities

reside, that minority officers are pressured to meet the quotas, and that minority officers suffer

adverse and retaliatory employment actions when they refuse to enforce or complain about the

quotas as discriminatory. (Docket Entry No. 31.) Defendants now move, pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss all of Plaintiffs' claims against them.

(Docket Entry Nos. 32 and 48.)

The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1343, and

1367.

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The Court has considered the parties' submissions carefully. For the following reasons, Defendants’ motion is granted and the Amended Complaint is dismissed. Plaintiffs may make a motion for leave to replead the claims and requests for relief asserted in their Second, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, and Seventeenth Causes of Action. Any such motion must be filed by March 27, 2017, and must be accompanied by a proposed Second Amended Complaint and a memorandum of law. Failure to make such a timely motion, or denial of the motion as futile, may result in dismissal of the Amended Complaint in its entirety, without further advance notice.
BACKGROUND The following facts are alleged in the Amended Complaint or drawn from documents annexed thereto. Plaintiffs are Latino and African-American police officers employed by the NYPD2 who allege that, as a result of the imposition of illegal quotas and illegal penalties by Defendants that have had disparate effects on Latino and African-American police officers, they have been subject to negative employment actions including negative evaluations; lost compensation, overtime, and vacation days earned; punitive postings and punitive transfers; denial of upgrades, promotions, overtime, and accrued time earned; and discrimination in their employment on the basis of race and national origin. (Am. Compl. ¶ 2.)

2

As police officers employed by the NYPD, Plaintiffs are members of the

Patrolmen's Benevolent Association (the "Union") and are subject to a collective

bargaining agreement. See Collective Bargaining Agreements between the City

of New York and the Union, available at

https://www1.nyc.gov/assets/olr/downloads/pdf/collectivebargaining/cbu79-polic

e-patrolmens-benevolent-association-080106-to-073110.pdf (last accessed Feb.

12, 2017) and

http://www1.nyc.gov/assets/olr/downloads/pdf/collectivebargaining/2010-2012-P

BA-NYC-Impasse-Award.pdf (last accessed Mar. 6, 2017); see also Pls. Opp. Br.,

Docket Entry No. 38, at 25.

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Plaintiffs and the prospective class members allege they “are disproportionately affected by the imposition of illegal quotas and the punitive consequences of the failure to meet the quotas, as opposed to white police officers, because” Plaintiffs, as “minorities working in neighborhoods dominated by minority residents, are unwilling to perform racially discriminatory and unwarranted enforcement actions against the minority community,” leading to a “racially unfair and unreasonable performance evaluation system and unfair and unwarranted disciplinary actions and penalties to which the [P]laintiffs are subjected and to which white police officers are not subjected.” (Id. at ¶ 23.)
The City is a municipal corporation and is the employer of the named Plaintiffs and the prospective class members, as well as the individually named Defendants. (Id. at ¶ 42.) In his capacity as mayor since January 2014, Defendant Mayor de Blasio "routinely met with the Police Commissioner[,] Deputy Police Commissioners[,] and other high-ranking members of the NYPD to set policy and make recommendations relating to the policies, administration, practices, customs[,] and procedure[s] of the NYPD and relating to the disciplinary system and implementation of penalties within the NYPD." (Id. at ¶ 44.) In his capacity as Commissioner, Bratton was the “principal administrator” of the NYPD, “responsible for the application of the NYPD’s enforcement and administrative polic[i]es[,] including its internal investigatory and disciplinary process.” (See id. at ¶ 45.)3 As Chief of Department, O’Neill was “the highest

3

The Court takes judicial notice that Defendant O’Neill is now the Commissioner

of the NYPD, Defendant Bratton having resigned the post. At the time of

Plaintiffs’ pleading and Defendants’ motion, Bratton was Police Commissioner.

O’Neill succeeded him as Police Commissioner in September 2016. The case

caption has been updated to reflect the names of the current officeholders named

as official-capacity defendants and to retain Former Commissioner Bratton as a

defendant in his individual capacity. See supra n. 1.

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ranking non-civilian . . . uniformed police officer” and “in charge of all NYPD operations answering only to the Police Commissioner and the Mayor.”4 (See id. at ¶ 46.) As Chief of Patrol, Gomez was the “NYPD’s commanding officer of patrol services,” including the precincts, and “exercised supervisory control over the plaintiffs at all relevant times and participated in making and executing the policy and practices complained of herein.”5 (See id. at ¶ 47.) The Amended Complaint alleges that the Individual Defendants knew or should have known of the customs, practices, and policies described in the Amended Complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the Plaintiffs and "condoned, ratified and/or authorized” such practices, policies, and conduct. (See id. at ¶ ¶ 44-47.)
Plaintiffs allege that, “[o]ver the past decade” and through the present, “the NYPD has pursued an unofficial policy of directing, instructing, compelling and mandating its employees to perform a mandatory number of arrests, issue a mandatory number of summons or write a mandatory number of tickets," or quotas, "over a defined period of time," as a “performance standard” for employees, despite official statements that the NYPD does not maintain such quotas. Id. at ¶ 3. Promotion or job security in the NYPD is alleged to depend on

4

At the time of Plaintiffs’ pleading and Defendants’ motion, O’Neill was Chief of

Department. Gomez succeeded him as Chief of Department in September 2016,

and the case caption has been updated to reflect the names of the current

officeholders named as official-capacity defendants. See supra n. 1.

5

At the time of Plaintiffs’ pleading and Defendants’ motion, Gomez was Chief of

Patrol. Monahan succeeded him as Chief of Patrol in September 2016, and the

case caption has been updated to reflect the names of the current officeholders

named as official-capacity defendants. See supra n. 1.

RAYMOND MTD.WPD

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“the number of arrests made or tickets issued” and, "[a]lthough the NYPD has continuously denied the existence of quotas and asserts that it relies only on a set of 'productivity goals,' or 'performance goals,' those phrases are [alleged to be] mere euphemisms for a quota system." Id. at ¶ 4. Plaintiffs allege that the performance evaluation system “is not evenly applied to all precin[c]ts depending on the location of the precin[c]t,” and despite the system’s being “neutral on its face,” it “is un[]evenly applied in that minority officers are more likely to be charged, investigated and receive more punishment[] than their white counterparts for the same alleged offenses.” Id. at ¶ ¶ 25-26.
First Amendment retaliation claims are asserted on behalf of certain of the individual Plaintiffs, who allege that they filed numerous formal and informal complaints and have spoken publicly about the alleged imposition of illegal quotas. In some instances, Plaintiffs identify years or settings in which they complained about the alleged illegal quotas internally or to the public, or testified in litigations regarding “stop-and-frisks,” but Plaintiffs are not specific about the allegedly retaliatory acts that occurred or when they occurred in relation to the Plaintiffs’ alleged complaints. (See e.g., id. at ¶ ¶ 48-51 (alleging that Raymond “complained to his superiors about” the quota “after seven months on the job,” after joining the force in 2008, was transferred out of a certain unit in 2012, and has been, at unspecified times, “penalized by punitive postings, low performance evaluations, denial of upgrades and promotions, denial of overtime, and denial of time off”).)

DISCUSSION

Defendants move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to

dismiss Plaintiffs' Amended Complaint in its entirety for failure to state a claim upon which

RAYMOND MTD.WPD

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6

relief can be granted. (See Docket Entry Nos. 32, 48.) In determining whether a plaintiff has set forth the "short and plain statement of the claim showing that [she is] entitled to relief" required by the Federal Rules (see Fed. R. Civ. P. 8(a)(2)), the Court looks to whether the allegations in the complaint establish the "facial plausibility" of the plaintiff’s claims. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Such a showing "must be enough to raise a right to relief above the speculative level," requiring "more than labels and conclusions, [or] a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (internal quotation marks omitted). In deciding a Rule 12(b)(6) motion to dismiss, the Court assumes the truth of the facts asserted in the complaint and draws all reasonable inferences from those facts in favor of the plaintiff. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
“In adjudicating a motion to dismiss, a court may consider only the complaint, any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the complaint heavily relies.” Geron v. Seyfarth Shaw LLP (In re Thelen LLP), 736 F.3d 213, 219 (2d Cir. 2013) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153-54 (2d Cir. 2002)).

New York Labor Law § 215-a (First and Sixteenth Causes of Action)

Plaintiffs seek damages and declaratory relief for Defendants’ alleged

maintenance of quotas, and imposition of discipline for violating such quotas, in violation of

New York Labor Law § 215-a. (Am. Compl. ¶ ¶ 92-96.) Defendants seek dismissal of this

RAYMOND MTD.WPD

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claim, asserting that the Court lacks subject matter jurisdiction because Plaintiffs failed to

exhaust their administrative remedies, and that there is no private right of action under the

statute.

New York Labor Law § 215-a(1) provides, in relevant part:

No employer or his or her duly authorized agent shall transfer or in any other manner penalize or threaten, expressly or impliedly, an employee who is a police officer as to his or her employment in a manner, including, but not limited to, a reassignment, a scheduling change, an adverse evaluation, a constructive dismissal, the denial of a promotion, or the denial of overtime based in whole or in part on such employee's failure to meet a quota, established by his or her employer or his or her duly authorized agent, of (a) tickets or summonses issued within a specified period of time of provisions of law for which a ticket or summons is authorized by any general, special or local law; or (b) arrests made within a specified period of time for violations of provisions of law for which such arrest is authorized by any general, special or local law; or (c) stops of individuals suspected of criminal activity within a specified period of time. Any employee so transferred or otherwise penalized may cause to be instituted a grievance proceeding pursuant to the provisions of a collective bargaining agreement, if any, or pursuant to the provisions of section seventy-five-a of the civil service law if no collective bargaining agreement exists. . . .

Plaintiffs do not allege that they have instituted grievance proceedings regarding

the alleged violations, and they concede that the statute does not provide expressly for a private

right of action. (See Pls. Opp. Br., at 25.) Plaintiffs acknowledge that their union, "on behalf of

all police officers, entered into a Collective Bargaining Agreement containing a grievance and

arbitration procedure." Id. Plaintiffs also concede that "[o]rdinarily, this would be the end of the

discussion pursuant to Healy v. City of New York Department of Sanitation, 04-CV-7344, 2006

U.S. Dist. LEXIS 86344 (S.D.N.Y. 2006), and other cases cited by [] [D]efendant[s]," because

plaintiffs covered by a grievance procedure "may not seek judicial relief prior to filing a

grievance and exhausting all administrative remedies." Id. Plaintiffs nonetheless argue that the

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Court should "imply a private right of action" as "the only reasonable way to achieve the stated

purpose of Section 215-a," because the provision is "being grossly and wantonly violated by

[D]efendants on a daily basis and the grievance procedures available to individual police officers

have proven wholly inadequate as a means to remedy those violations." Id.

"In New York, when a statute does not provide an express private right of action,

a court must consider three factors in implying one: (1) whether the plaintiff is one of the class

for whose particular benefit the statute was enacted; (2) whether recognition of a private right of

action would promote the legislative purpose; and (3) whether creation of such a right would be

consistent with the legislative scheme." Hollins v. City of New York, 2014 WL 836950, at *12

(S.D.N.Y. Mar. 3, 2014) (internal quotation marks and citation omitted). Assuming the truth of

the facts asserted in the Amended Complaint and drawing all reasonable inferences from those

facts in favor of Plaintiffs, it is clear that Plaintiffs are members of the class for whose particular

benefit the statute was enacted–police officers at risk of being transferred or penalized for failure

to meet a quota. By providing for use of a grievance procedure in the text of the statute,

however, the legislature indicated an intention that alleged violations of Section 215-a involving

union-represented personnel should be addressed, at least in the first instance, in the collective

bargaining context, not by courts in direct private actions. Implication of a private right of

action, circumventing the statutorily prescribed collective bargaining grievance procedure,

would neither promote the legislative purpose nor be consistent with the legislative scheme.

Consideration of the Hollins factors thus does not counsel in favor of implying a private right of

action.

As Section 215-a does not provide for a private right of action and Plaintiffs have

not identified any other proper basis for adjudication by this court of Defendants’ compliance

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with the provisions of Section 215-a, Plaintiffs’ First and Sixteenth Causes of Action will be dismissed.

42 U.S.C. § 1981 – Civil Rights Act of 1866 (Second Cause of Action)

Plaintiffs allege that Defendants are liable for depriving Plaintiffs and prospective

class members of their civil rights, including the rights and benefits of their employment

contractual relationship with the NYPD, on the basis of their race, color, and/or national origin

in violation of the Civil Rights Act of 1866, 42 U.S.C § 1981. (Am. Compl. ¶ ¶ 97-108.)

Defendants assert that the Amended Complaint fails to state a claim for employment

discrimination because Plaintiffs fail to plausibly allege purposeful race or national origin

discrimination. (See Def. Opening Br. at 5-11.)

Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction

of the United States shall have the same right in every State and Territory to make and enforce

contracts . . . and to the full and equal benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens . . . .” 42 U.S.C.S. § 1981(a) (LexisNexis

2009). “[T]he term ‘make and enforce contracts’ includes the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,

and conditions of the contractual relationship.” 42 U.S.C.S. § 1981(b) (LexisNexis 2009).

Section 1981’s protections apply to employment relationships. See Patterson v. Cty. of Oneida,

375 F.3d 206, 224 (2d Cir. 2004). However, “[w]hen the defendant is a state actor, Section 1983

is the exclusive remedy for violations of rights guaranteed under Section 1981 . . . [t]hus, claims

against . . . [i]ndividual [d]efendants in their official capacity or against the City, must be

brought under Section 1983.” Bermudez v. City of New York, 783 F. Supp. 2d 560, 576

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(S.D.N.Y. 2011) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)) (additional citations omitted). To the extent the Individual Defendants are sued in their individual capacities, the claims involve official action taken under color of state law and thus are also properly considered under Section 1983. The Court, accordingly, deems Plaintiffs’ Second Cause of Action to be an Equal Protection Clause claim brought pursuant to Section 1983.6
“Although ‘an employment discrimination plaintiff need not plead a prima facie case of discrimination’ in order to survive a motion to dismiss,” a plaintiff “must allege sufficient facts showing that she is entitled to relief.” Bermudez, 783 F. Supp. 2d at 575 (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002)). “Purposeful discrimination requires more than intent as volition or intent as awareness of consequences; it involves a decisionmaker’s undertaking a course of action because of, not merely in spite of, the action’s adverse effects upon an identifiable group.” Iqbal, 556 U.S. at 663 (internal quotation marks, brackets, and citation omitted).
The Amended Complaint does not allege that Defendants acted in a purposefully discriminatory manner. See Iqbal, 556 U.S. at 663. Plaintiffs allege that the performance evaluation system is unevenly applied to all precincts, depending on the precinct’s location, and that, despite the system being “neutral on its face,” it is unevenly applied to minority officers, who are more likely to be charged, investigated, and punished than their white counterparts for

6

Plaintiffs appear to agree with this reading of their claims. Despite the fact that

the Amended Complaint does not expressly include a cause of action for an Equal

Protection Clause claim brought pursuant to Section 1983, Plaintiffs argue in their

opposition brief that the Amended Complaint does indeed state a claim for

employment discrimination under the Equal Protection Clause, and rely on

Section 1983 doctrine and the McDonnell Douglas line of cases, in support of

their argument. (See Pls. Opp. Br., at 9-22.)

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the same alleged offenses. See Am. Compl. at ¶ ¶ 25-26. Such generalized disparate impact

allegations are insufficient to plead the intentional discrimination that is an essential element of

claims pursuant to Section 1983. To the extent Plaintiffs intend to assert a claim for intentional

retaliation for complaints of discriminatory discipline, the Amended Complaint fails for the

same reason. Plaintiffs’ conclusory allegations that the Defendants’ actions were “willful and

malicious” and “reckless and intentional” are mere formulaic recitations and thus fail to meet the

requirement of plausible factual pleading established by Twombly and Iqbal.

In their opposition papers, Plaintiffs proffer arguments based on expert reports

and testimony from other lawsuits. These materials are neither referenced in nor integral to the

Amended Complaint and thus cannot be considered in assessing the sufficiency of the current

pleading. Plaintiffs will, however, be given an opportunity to propose a further amended

complaint.

The Amended Complaint is also insufficient because the named Individual

Defendants, all of whom work in supervisory capacities, are not alleged to have been involved

personally in the alleged violations or to have personally approved or authorized the challenged

actions. “[U]nder Section 1983 and Section 1981 supervisors can be sued individually, without

directly participating in the underlying conduct, only if they promulgated unconstitutional

policies or plans under which action occurred, or otherwise authorized or approved challenged

misconduct. . . . [t]o lay a proper foundation for individual liability, the plaintiff must plead

specific, nonconclusory factual allegations to establish the participation at the necessary mental

state of the individual defendants, or [plaintiffs’] claims against them will be dismissed.”

Bermudez, 783 F. Supp. 2d at 602 (citations and quotation marks omitted). The Individual

Defendants may be “sued individually, without directly participating in the underlying conduct,

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only if they promulgated unconstitutional policies or plans under which action occurred, or otherwise authorized or approved challenged misconduct[,]” and to properly lay a foundation for such “individual liability, [Plaintiffs] must plead specific, nonconclusory factual allegations to establish the participation at the necessary mental state of the individual defendants.” See id. at 602.
Insofar as Plaintiffs seek to hold the Individual Defendants liable in their personal capacities, the Amended Complaint fails to state a claim because Plaintiffs have not proffered nonconclusory allegations indicative of personal involvement by the Individual Defendants in the alleged violations of Plaintiffs’ rights, nor have Plaintiffs established that the Individual Defendants devised, promulgated, authorized or approved the alleged intentionally discriminatory disciplinary practices and policies. Plaintiffs’ allegations that the Individual Defendants knew "or should have known of the customs, practices, and policies described in [the Amended] [C]omplaint,” including the “the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the [P]laintiffs” and “condoned, ratified and/or authorized such practices and policies,” see Am. Compl. at ¶ ¶ 44-47, are insufficient to allege plausibly the Individual Defendants’ “participation at the necessary mental state.” See Bermudez, 783 F. Supp. at 602.
Plaintiffs’ Second Cause of Action will, accordingly, be dismissed, with an opportunity to propose a further amended complaint that includes a Section 1983 claim.

Conspiracy to Deny Plaintiffs of Rights in Violation of 42 U.S.C. §§ 1985, 1986 (Third Cause of Action)
Plaintiffs allege that Defendants are engaged in a conspiracy to deny Plaintiffs

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and members of their class the rights, privileges and immunities, and equal protection of the laws

to which they are entitled under the Constitution and laws of the United States in violation of 42

U.S.C. § 1985, and that all of the Individual Defendants, as public officials, had notice of that

conspiracy and their failure and/or refusal to prevent, prohibit and/or ameliorate the conspiracy

constitutes a violation of 42 U.S.C. § 1986. (Am. Compl. ¶ ¶ 109-14.) Defendants move to

dismiss the claims, arguing that (1) the Amended Complaint fails to state a claim under Section

1985 or Section 1986, because the Plaintiffs fail to plead a conspiracy claim adequately under

Section 1985(3) and the intracorporate conspiracy doctrine immunizes the Defendants from suit;

and (2) because they did not address Defendants’ arguments in their opening brief regarding

these claims, Plaintiffs have abandoned them. (See Def. Opening Br. at 11-15; Def. Reply Br. at

8-9.)

Section 1986 creates a cause of action against “[e]very person who, having

knowledge that any of the wrongs conspired to be done, and mentioned in [Section 1985], are

about to be committed, and having power to prevent or aid in preventing the commission of the

same, neglects or refuses so to do, if such wrongful act be committed.” 42 U.S.C.S. § 1986

(LexisNexis 2009). In determining whether the City may be held liable under Section 1986, the

Court must look to whether Plaintiffs have properly set forth a Section 1985 claim, because the

existence of an unlawful conspiracy and subsequent commission of a “wrongful act,” as

described in Section 1985, are necessary conditions precedent to a Section 1986 action. See Posr

v. Court Officer Shield No. 207, 180 F.3d 409, 419 (2d Cir. 1999) (“[N]o § 1986 claim will lie

where there is no valid § 1985 claim.”) (citing Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194

(2d Cir. 1994)).

“The intracorporate conspiracy doctrine posits that the officers, agents, and

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employees of a single corporate or municipal entity, each acting within the scope of his or her

employment, are legally incapable of conspiring with each other.” Dunlop v. City of New York,

2008 WL 1970002, at *9 (S.D.N.Y. May 6, 2008) (quotation marks and citation omitted). At

least one court in this district has ruled that “[i]t is beyond doubt that” NYPD individual

defendants, including the Commissioner, Chief, and various deputy chiefs, “are all employees of

a single municipal entity–the City, and, more narrowly, the NYPD–and, therefore, are legally

incapable of conspiring with each other.” Id. (citation omitted). Furthermore, “it is well-settled

that the doctrine bars conspiracy claims alleging concerted action by employees and/or the heads

of various departments within a single municipal entity,” including the City as an entity and the

Mayor, “at least where the complaint fails to allege that the various entities were effectively

acting as separate entities in carrying out the alleged conspiracy.” Id. (citations omitted). Thus,

the intracorporate conspiracy doctrine applies when a complaint “clearly depict[s]” a conspiracy

“as the product of a single corporation acting exclusively through its own directors, officers, and

employees.” Id. at *10 (quotation marks and citation omitted). There is an exception to the

doctrine, however, if the plaintiff sufficiently alleges “that the individual defendants were

motivated by an independent personal stake in achieving the corporation’s objective rather than

merely carrying out the corporation's managerial policy.” Id. (internal quotation marks,

citations, and brackets omitted).

Here, “[i]t is beyond doubt that” the Individual Defendants “are all employees of

a single municipal entity–the City . . . and, therefore, are legally incapable of conspiring with

each other.” See id. at *9. Plaintiffs do not allege that the City, the Mayor, and the other

Individual Defendants “were effectively acting as separate entities in carrying out the alleged

conspiracy.” See id. Thus, the intracorporate conspiracy doctrine bars Plaintiffs’ conspiracy

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claim, which alleges concerted action by the Defendants, all of whom are either employees “within a single municipal entity” or the entity itself. See id. The Amended Complaint “clearly depicts” the alleged conspiracy “as the product of a single corporation acting exclusively through its own directors, officers, and employees.” See id. at *10; see also Am. Compl. ¶ ¶ 3, 18-20. Nor have Plaintiffs sufficiently alleged that the Individual Defendants “were motivated by an independent personal stake in achieving the corporation’s objective rather than merely carrying out the corporation's managerial policy.” Donlop, 2008 WL 1970002, at *10. The intracorporate conspiracy doctrine thus bars Plaintiffs’ Sections 1985 and 1986 claim.
Moreover, in their opposition papers to Defendants’ initial motion, Plaintiffs failed to respond to Defendants’ Sections 1985 and 1986 arguments. When a plaintiff fails to respond to arguments regarding liability when challenging a motion to dismiss, a plaintiff is deemed to have “effectively abandoned” the claims, and the claims may be “dismissed as a matter of law.” See Bonilla v. Smithfield Assocs. LLC, 2009 WL 4457304, at *4 (S.D.N.Y. Dec. 4, 2009). Plaintiffs’ Sections 1985 and 1986 claims are deemed to have been abandoned and are dismissed.

New York State and New York City Human Rights Laws (Fourth and Fifth Causes of Action) Plaintiffs assert claims under the New York State and New York City Human
Rights laws that parallel their Section 1981 and 1983 claims. For substantially the reasons explained above in connection with Count Two, the Amended Complaint fails to state causes of action under these anti-discrimination laws. Plaintiffs will be given the opportunity to move to replead these claims.

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First Amendment Retaliation Claims by Plaintiffs Raymond, Polanco, Serrano, Waller, and Gonzalez (Sixth, Eighth, Tenth, Twelfth, and Fourteenth Causes of Action)
Plaintiffs allege that Defendants retaliated against individual Plaintiffs Raymond, Polanco, Serrano, Waller, and Gonzalez for internal and certain external complaints regarding the allegedly discriminatory quota and discipline policies by imposing discriminatory employment measures on them, thereby violating these Plaintiffs’ rights under the First Amendment to the United States Constitution and 42 U.S.C. § 1983. Defendants seek to dismiss these claims for failure to allege plausibly causal relationships between the alleged complaints and the allegedly unfair discipline and, as to the claims against the Defendants in their individual capacities, on the basis of qualified immunity. In their opposition papers, Plaintiffs proffer additional facts and request leave to augment their pleading.
Plaintiffs, who for the most part failed in the Amended Complaint to specify the nature and timing of the alleged complaints and allegedly retaliatory discipline and have not pleaded facts demonstrating the personal involvement of the Individual Defendants, will be given leave to move to replead these First Amendment claims in a further amended complaint. Because Plaintiffs have not yet framed these claims sufficiently, the issue of qualified immunity is premature and will not be addressed at this juncture.

New York State Constitution Article 1, § 8 Free Speech Retaliation Claims by Plaintiffs Raymond, Polanco, Serrano, Waller, and Gonzalez (Seventh, Ninth, Eleventh, Thirteenth, Fifteenth Causes of Action)
Plaintiffs assert that, in retaliating against individual Plaintiffs Raymond,
Polanco, Serrano, Waller, and Gonzalez for complaining about the alleged quotas and
discriminatory discipline, Defendants also violated Article 1, § 8 of the New York State

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Constitution. Defendants assert that these claims should be dismissed because these claims mirror the First Amendment claims that Plaintiffs brought under Section 1983. (Def. Opening Br. at 22.) Defendants’ point is well taken.
“[I]t is a common view among District Courts in this Circuit that there is no right of action under the New York State Constitution for claims that can be brought under § 1983.” Dava v. City of New York, 2016 U.S. Dist. LEXIS 115639, at *30-31 (S.D.N.Y. Aug. 29, 2016) (quotation marks and ellipses omitted) (citing Gounden v. City of New York, 2015 WL 5793625, at *5 n. 3 (E.D.N.Y. Oct. 2, 2015); Flores v. City of Mount Vernon, 41 F. Supp. 2d 439 (S.D.N.Y.1999); and Sherman v. Town of Chester, 2015 WL 1473430, at *14 (S.D.N.Y. Mar. 31, 2015)). "‘New York courts will only imply a private right of action under the state constitution where no alternative remedy is available to the plaintiff.’" Davis v. City of New York, 959 F. Supp. 2d 324, 368 (S.D.N.Y. 2013) (quoting Felmine v. City of New York, 2012 WL 1999863, at *6 (E.D.N.Y. June 4, 2012)).
Because Plaintiffs are asserting First Amendment retaliation claims pursuant to Section 1983, their state constitutional claims are superfluous and will be dismissed.

Claim for Injunctive Relief (Cause of Action Seventeen) Plaintiffs have asserted a claim for preliminary and permanent injunctive relief
barring the City and the NYPD from using arrest or summons statistics as evaluation tools, without specifying the substantive legal or factual basis of this claim for relief. "A party seeking a preliminary injunction must either show that he is likely to succeed on the merits; that he is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in his favor; and that an injunction is in the public interest; or he may show irreparable harm

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and either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." ACLU v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015) (internal citation and quotation marks omitted). To obtain a permanent injunction, a party seeking such relief must demonstrate, among other things, that “‘it has suffered an irreparable injury’.” World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 160-61 (2d Cir. 2012) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). Plaintiffs have neither tied this claim for injunctive relief to a sufficient claim on the merits nor pleaded facts indicative of a prospect of irreparable harm. The Seventeenth Cause of Action will be dismissed, without prejudice to the inclusion of requests for injunctive relief in a proposed Second Amended Complaint.
CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss the Amended Complaint is granted. Plaintiffs may make a motion for leave to replead the claims and requests for relief asserted in their Second, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, and Seventeenth Causes of Action. Any such motion must be filed by March 27, 2017, and must be accompanied by a proposed Second Amended Complaint and a memorandum of law. Failure to

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make such a timely motion, or denial of the motion as futile, may result in dismissal of the Amended Complaint in its entirety, without further advance notice.
This Memorandum Opinion and Order resolves Docket Entry Nos. 32 and 48.
SO ORDERED.

Dated: New York, New York March 6, 2017

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN United States District Judge

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 Case 1:15-cv-06885-LTS-HBP Document 87 Filed 07/11/18 Page 1 of 53

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
EDREWEENE RAYMOND, PEDRO SERRANO, SANDY GONZALEZ, and RITCHIE BAEZ,
Plaintiffs,
-against-
THE CITY OF NEW YORK, WILLIAM J. BRATTON, JAMES P. O'NEILL, CHRISTOPHER McCORMACK, and CONSTANTIN TSACHAS,
Defendants.

Docket No. 15-CV-6885 (LTS)
SECOND AMENDED COMPLAINT

Plaintiffs, Edreweene Raymond, Pedro Serrano, Sandy Gonzalez and Ritchie Baez, (hereinafter, "Plaintiffs") by and through their attorneys, Nwokoro & Scola, Esquires, allege the following upon information and belief, against the City ofNew York, William J. Bratton (former Commissioner of Police ofthe City ofNew York), James P. O'Neill, (former NYPD Chief of Department and current Police Commissioner), Christopher McCormack (Inspector and Former Commanding Officer of the 40th Precinct), and Constantin Tsachas (A Deputy Inspector and former Commanding Officer of Transit District 32).

PRELIMINARY STATEMENT

1.

This is an action for compensatory damages to redress the deprivation of rights,

which are secured to the plaintiffs by the 1st, Amendment, (depriving plaintiff of the right

of free expression by punishing and retaliating against the plaintiff's for complaining

about and speaking out against the quota) the 5th, and 14th Amendments (depriving

Case 1:15-cv-06885-LTS-HBP Document 87 Filed 07/11/18 Page 2 of 53

plaintiffs ofbenefits without due process), and the 14th Amendment (depriving

plaintiffs of the equal protection of the laws by discriminating against the plaintiffs on

the basis of race and national origin) and for violations of the Civil Rights Act of 1866,

42 U.S.C. § 1981,42 U.S.C. §1983, 42 U.S.C. §1985, the New York State Human Rights Law, New York Executive Law §296; New York City Local Law 59 of 1986, as

amended by Local Rule 39 of 1991, §§8-101, et seq,;

2.

Plaintiffs, Latino and African-American minority Police Officers employed by the

New York City Police Department, bring this action against the New York City Police

Department for violations of the 1st, 5th and 14th amendments to the United States

Constitution, and for discrimination in their employment on the basis of race and national origin which discrimination is in violation of 42 U.S.C. §1981, 42 U.S.C. § 1983, 42

U.S.C. § 1985, the New York State Human Rights Law, New York Executive Law §296

and New York City Local Law 59 of 1986 as amended by Local Rule 39 of 1991, §§ 8-

101, et seq.

3.

Under the complex performance evaluation system applicable to the plaintiffs,

police officers can receive one of nine available rating scores from 1 to 5, as follows, 1.0,

1.5, 2.0, 2.5, 3.0, 3.5, 4.0, 4.5, 5.0, with 1 as the lowest and 5 as the highest possible

score. A score is further classified to fall into one of the following five catergories;

Extremely Competent, (EC) Highly Competent (HC), Competent (C), Low (L), and Very

Low (VL). A score of 4.5 and above is generally classified as extremely competent. A

score of 4.0 is generally classified as highly competent. A score of 3.0 or 3.5 is a passing

score and is generally classified as competent. Any score below 3.0 is a failing score. A

score of 2.5 or 2.0 is a failing grade and is generally classified as low.

Case 1:15-cv-06885-LTS-HBP Document 87 Filed 07/11/18 Page 3 of 53
4. Annual performance ratings are important in that a rating of 4.0 or highly competent is generally required, in addition to passing the requisite civil service examination, for promotion to the next rank. Additionally, most specialized units within the NYPD generally require a rating of 4.5 (Extremely Competent) or 4.0 (Highly Competent) for incoming transferees. Transfers to specialized units within the NYPD are desirable because such units offer more opportunities for overtime pay and premium pay. Membership of such units also make it more likely that the police officer will be considered for promotions in rank and for supervisory and administrative positions within the same rank. 5. Annual performance ratings are also important because any rating below a 3.0 out of 5.0 is a negative performance evaluation that makes the recipient a candidate for placement into the probationary Performance Monitoring Program. 6. The Performance Program is a probationary program whereby police officers are placed for disciplinary purposes when they are deemed by the department to have engaged in a serious pattern of misconduct or have ongoing severe disciplinary problems or when they have a negative performance evaluation. 7. There are three levels of performance monitoring, from the least serious to the most serious, as follows: Level I, Level II and Level III which includes all those on dismissal probation. The criteria for being placed on level I performance monitoring includes the following: Getting three or more CCRB complaints in a one year period; getting six of more CCRB complaints in the past five years; getting four or more excessive force complaints in the last two years or five or more excessive force complaints in the last four years; referral by competent authority such as the Integrity

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Control Officer or the Commanding Officer; being on suspension or modified duty; and

being administratively transferred. The criteria for being placed on Level II performance

monitoring include; being the subject of three or more commenced lawsuits for police

action within a one year period or six or more commenced lawsuits within a five year

period; being the subject of one or more lawsuits for police action disposed for $100,000

or more within a one year period; being adjudged guilty of one set of departmental

charges and specifications for excessive force action within five years, or of two or more

substantiated civilian complaints within four years; serious misconduct resulting in a

penalty of twenty days or more; or if performance or behavior remain sub-standard after

one year of placement on Level I performance monitoring.

8.

The criteria for being placed on Level III performance monitoring includes; being

placed in performance monitoring at the direction of the Special Monitoring Committee,

(made up ofthe First Deputy Commissioner, the Deputy Commissioners of Personnel,

Internal Affairs and the Department Advocate), or on the recommendation of a

Commanding Officer of a Precinct or Squad, or Borough Commander, and approval of

that recommendation by the Special Monitoring Committee; and being placed on

dismissal probation.

9.

In practice, all it takes to have a police officer placed in the Performance

Monitoring Program is the recommendation of the Commanding Officer (C.O.) or the

Integrity Control Officer (I.C.O.).

10. Police officers placed on performance monitoring are denied certain benefits of their employment as follows depending on the level of performance monitoring; they are not permitted to work paid detail (a source of premium pay or additional income); they

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are not permitted off duty employment; they are not permitted to work in the first platoon (the first platoon refers to the shift which starts from 11:15 p.m. and ends at 7:50 a.m., which pays a night differential in addition to the regular salary); they are not permitted to commence their tour later than 18:00 hours (this also means they can never get the night differential pay (which is a source of additional income); They are not permitted to perform anti-crime duties (which eliminates any chance of a transfer to a specialized unit or any other favorable transfer). In addition, police officers on performance monitoring can be suspended, placed on modified assignment, or terminated at the discretion of the commissioner. 11. The lowest level of discipline applied to police officers such as the plaintiffs is being written into the Minor Violations Log that is maintained in each Precinct or Command. The log lists offenses that are not reported to the NYPD as a whole. A minor offense might include, failure to report to an assignment on time or failure to abide by the dress code. 12. The next level of discipline is the Command Discipline (CD). The CD may be issued by any supervisory officer from the rank of Sergeant and above. The CD is investigated and adjudicated solely by the Commanding Officer or her Executive Officer (XO) and is usually resolved solely within the precinct or command. In a typical precinct, the rank of both the CO and the XO is Captain, or above. 13. The CD is used for minor infractions ofNYPD rules and regulations that are not deemed serious enough to require formal Charges and Specifications. The CO has considerable discretion concerning the decision to issue a CD in connection with minor infractions and can impose any range of penalties including issuing up to 5 days of

Case 1:15-cv-06885-LTS-HBP Document 87 Filed 07/11/18 Page 6 of 53
suspension, deducting vacation time, ordering a change of assignment, ordering a transfer, limiting overtime, etc. In certain cases, (eg. Loss of one's shield, loss of a firearm, loss ofNYPD property) disciplinary action is required, but there is discretion as to whether a CD will be imposed or formal charges and specifications brought. If a CO proposes a CD that exceeds what the officer involves believes is fair, the officer may reject the proposed discipline, and the alleged offense is then forwarded to the NYPD's Advocate's Office for an internal departmental hearing. There is great pressure on officers to accept a CD at the command level, because the penalty can be much greater, (up to and including termination) if the matter goes to the NYPD Advocate's Office and the Officer does not prevail at the subsequent hearing. In addition to receiving proposed charges and specifications from precincts and commands, the NYPD Advocates Office may receive them from the Internal Affairs Bureau (lAB) or other internal investigative bodies.
14. The NYPD Advocate's Office investigates the charges sent to it, and a determination is made as to whether to issue Charges and Specifications which are prosecuted by an Assistant NYPD Advocate before a Trial Commissioner, an NYPD official with the rank of Deputy Chief or Chief, who answers to the Commissioner of Police.
JURISDICTION
15. Jurisdiction is conferred upon the Court pursuant to 28 U.S.C. §§ 1331 and 13343 (3) & (4) as this action seeks redress for the violation of plaintiffs civil rights. Plaintiffs further invoke the Court's supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a)

Case 1:15-cv-06885-LTS-HBP Document 87 Filed 07/11/18 Page 7 of 53
over any and all state law claims that are so related to the claims within the original jurisdiction of the Court that they form part of the same case or controversy.
VENUE
16. Venue is proper in the United District Court for the Southern District ofNew York pursuant to 28 U.S.C. §§ 1391 (b) and (c).
JURY DEMAND
17. Plaintiffs demand trial by jury in this action and on each and every one of their claims.
PARTIES
18. Plaintiff Edreweene Raymond is an African American male Police Officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered negative employment consequences as a result of the failure to meet the illegal quotas; has been racially discriminated against with respect to performance evaluations, the performance monitoring program, and the administration of discipline and punishment. Has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech; and has been penalized for reporting, opposing and complaining about the illegal quotas and its racially discriminatory application against the minority community. 19. Plaintiff Pedro Serrano is a Hispanic male and a police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered negative employment consequences as a result of the failure to meet the illegal quota; has suffered racial discrimination with respect to performance evaluations, the Performance Monitoring Program, and the administration of discipline and punishment;

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Has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 20. Plaintiff Sandy Gonzalez is a Hispanic male and a police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered negative employment consequences as a result of the failure to meet the illegal quota; has suffered racial discrimination with respect to performance evaluations, the Performance Monitoring Program, and the administration of discipline and punishment; has expressed his opposition to the illegal quotas and has been retaliated against in violation of his rights to free speech; and has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community 21. Plaintiff Ritchie Baez is a black male of Hispanic heritage and a police officer employed by the NYPD who has been under supervisory pressure to comply with the illegal quotas; has suffered racial discrimination with respect to performance evaluations, the Performance Monitoring Program, and the administration of discipline and punishment; has suffered negative employment consequences as a result of the failure to meet the illegal quotas; has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community. 22. Defendant the City ofNew York (the City) is and was at all times relevant hereto, a municipal corporation duly organized and existing under the laws of the State of New York, exercising governmental authority. Defendant is an employer subject to Federal

Case 1:15-cv-06885-LTS-HBP Document 87 Filed 07/11/18 Page 9 of 53
Laws and to the New York State Human Rights Law and New York City Local Law. Defendant City is a person for purposes of 42 U.S.C. §§ 1981 and 1985 and is and was the employer of the named plaintiffs and prospective class members as well as the individually named defendants, at all relevant times. 23. Defendant the City of New York contains within it, the New York City Police Department (NYPD) which was and is a department, agency, bureau and /or subdivision ofthe Defendant City. The New York City Police Department is and was at all times relevant hereto, a local government agency ofthe City ofNew York and as a result thereof, defendant City was or is the employer of all the individually named plaintiffs, the prospective class members and the individual defendants herein. 24. Defendant William J. Bratton was the Police Commissioner for the City of New York from January 2014 to September 2016. Defendant Bratton was an employee ofthe City of New York and was the principal administrator of defendant NYPD. He was responsible for the application of the NYPD's enforcement and administrative polices including its internal investigatory and disciplinary process. He was the final authority in all disciplinary matters within the NYPD. Police Commissioner William J. Bratton knew or should have known of the customs and practices described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the plaintiffs and Commissioner Bratton condoned, ratified and/or authorized such conduct. As police commissioner, he promoted Deputy Inspector McCormack from Captain to Deputy Inspector and then to Inspector even though it had been demonstrated that McCormack engaged in illegal behavior such as misclassif)ring felonies, racial

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profiling and imposing a quota on police officers in his command. Commissioner Bratton also promoted defendant Tsachas from Captain to Deputy Inspector and Commanding Officer of Transit Borough Brooklyn, although it had been demonstrated that Tsachas engaged in Illegal behavior such as officially instructing his surbordinates to target blacks and Iatinos and imposing a quota on police officers under his command. Defendant Bratton's visit to the 40th precinct on July 20, 2015, and the statement he made regarding the presence of an informer who had "dropped a dime" on the rest of the Department, contributed to named plaintiff Sandy Gonzalez being persecuted as a "rat". 25. Defendant James P. O'Neill was the NYPD's Chief of Department and the highest ranking non-civilian police uniformed police officer until September 2016, when he became the Police Commissioner. Defendant O'Neill is an employee of the City of New York. Upon information and belief, as the Chief of Department, he was in charge of all NYPD operations answering only to the Police Commissioner and the Mayor, and as Police Commissioner, he is responsible for the application of the NYPD's enforcement and administrative polices including its internal investigatory and disciplinary process. He is the final authority in all disciplinary matters within the NYPD. Defendant O'Neill, knew or should have known of the customs and practices described in this complaint, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the plaintiffs and Chief O'Neill condoned, ratified and/or authorized such conduct. O'Neill's visit to the 40th precinct in July 2015 and his implied condemnation of officers who recorded other officers contributed to the persecution of plaintiff's Serrano

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and Gonzalez and exposed them to the ridicule and hatred of their co-workers as informers or 'rats'.
26. Defendant Inspector Christopher McCormack was the Commanding Officer of the 40th precinct of the NYPD from September 27, 20 11 to May 2014, when he was transferred out of the precinct, after it was widely reported in the media that he was recorded pressuring a police officer to target young black males. Defendant McCormack used threats, slurs, low evaluations, punitive transfers, punitive postings and command disciplines to coerce black and Iatino police officers under his command to produce illegal law enforcement quotas, and he punished black and latino officers more severely and more often than the white officers under his command for failure to meet the quota and any other disciplinary issue. After named plaintiff's Gonzalez and Serrano complained about his racially discriminatory conduct, he retaliated against them with more punitive actions. 27. Inspector Constantin Tsachas was the Commanding Officer of Transit District 32 from June 2015 to June 2016. Defendant Tsachas illegally pressured named plaintiff Raymond, and other police officers in his command to enforce illegal law enforcement quotas, and punished them with low evaluations, punitive postings and punitive transfers for failure to do so. He also punished minority officers more severely and more often than the white officers in his command for failure to meet the quota and any other disciplinary issue. After named plaintiff Raymond publicly and officially expressed his opposition to the quota, Tsachas retaliated against him with more punitive actions.

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STATEMENT OF FACTS
28. PlaintiffEdreweene Raymond is a male black of Haitian origin. He became a police officer with the NYPD in July 2008. From January 2009 to January 2016, he was assigned to Transit District 32, located at 960 Carroll Street, Brooklyn, New York. 29. As a rookie in 2008, during the initial assignment known a IMPACT, plaintiff Raymond was taught that the primary motive is to get the highest possible number of arrests and write the highest possible number of summons. If you wanted to have a successful career in the NYPD, the motto is 'arrest anyone for anything, then repeat the process'. After about seven months in IMPACT, Raymond began to complain about being asked to arrest people without regard for the circumstances. He asked his then supervisor, Sergeant David Ferruzola, to be allowed to use more discretion. For this request, he was punished by being posted to the Coney Island Summer detail in the summer of2010, an undesirable posting, used primarily as punishment. He was told that he was being punished because he was low on law enforcement activity. 30. Plaintiff Raymond was then transferred to the midnight shift from that summer until March 2012. While on the mid-night shift, he was constantly pressured to get more arrests. He was told to arrest people for such trivial offenses as 'sitting outstretched'. i.e. taking up more than one seat on the subway. Homeless riders of the subway were the demographic mostly affected by such minor offense arrests. His supervisor at the time, Sergeant Marcia Whitely, constantly pressured him and other police officers to get more and more of such arrests and keep their law enforcement activity numbers up.

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31. In March 20 12, his then supervisors were replaced and new ones arrived. He requested a transfer to the Truancy Unit, which is a Special Operations Unit within Transit District 32. His request was granted and he was assigned to the Truancy Unit. The Special Operations Lieutenant, Lt. Haziq Reid, observed that Raymond's arrest numbers were low and spoke to Raymond's immediate Supervisor, Sergeant Scott Reiser of the Truancy Unit, who then spoke to Raymond about it during a meeting circa April2012. Reiser stated "find out what everyone else is doing and do the same". Six weeks after being assigned to the Truancy Unit, Raymond was kicked out of the Truancy Unit by Lt. Haziq Reid who told him, "if you get weekends off for being in a Special Unit, then you have to bring in a lot more bodies". Raymond was then transferred to the 3rd platoon (the shift that works from 3:00p.m. to 11:35 p.m.) and was in the 3rd platoon from May 2012 to January 2016.
32. The quota that all police officers in the Transit District 32 had to meet was at least one arrest and five summonses every month. If you did not meet this quota, you will be verbally reprimanded by you supervisors, given retaliatory assignments, denied requests for leave, and denied opportunities to earn overtime. If you continued to not meet the quota, you would receive sub-par evaluation ratings and then be placed on the Performance Monitoring Program. 33. In October 2013, Raymond took the civil service examination for promotion to the rank of sergeant, and passed with flying colors. He scored 93 out of 100 and was ranked #8 out of932 examinees. However, after the scores were released in June 2014, Captain Natalie Maldonado, the Commanding Officer of Transit District 32, met with Raymond's immediate Supervisor, Sergeant Martin Campbell, and told Campbell that if

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Raymond did not get his enforcement activity numbers up, he would not be promoted to sergeant and he would be placed on performance monitoring. 34. In January 2014, Raymond received an evaluation score of3.0 out of5.0 for the year 2013, from Sergeant Shannon Stapleton. 35. In March 2014, after meeting with Captain Oliver Pu-Folkes, Raymond was one of the police officers chosen for an NYPD Re-engineering Initiative Focus Group. Raymond was inspired by Captain Pu-Folkes to put his ideas regarding how to reengineer the department, in writing. 36. On July 23, 2014, Raymond wrote a letter addressed to the Commanding Officer/Team Leader, Collaborative Initiatives "Other City Agencies" Re-Engineering 2014 Group, Captain Pu-Folkes, and Transit Bureau Chief, Joseph Fox. In that letter, Raymond detailed how the commanding officer of Transit District 32, Captain Maldonado, was putting pressure on supervisors to pressure police officers, including Raymond, to increase their enforcement activity by making borderline arrests just to meet an arrest target, rather than focusing on the legitimate goals of reducing crime, and increasing public safety with respect to subway riders. 37. On November 22,2014, Raymond met with Platoon Commander Lt. Victoria Hayden, and he spoke out denouncing unlawful enforcement quotas that his supervisors were imposing on him, which he felt unfairly targeted black and Iatino communities. 38. Immediately following that meeting, on November 27, 2014, Raymond had a meeting with Sergeant Campbell where Campbell told Raymond that he had been ordered by Lt. Hayden to lower Raymond's evaluation score and assign him to a punitive post, in retaliation for Raymond's stance on the quota which Raymond had expressed to Lt.

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Hayden. Sergeant Campbell also stated that an honest assessment of Raymond's performance would result in an annual evaluation score of 4.0. 39. Since January 2015, Raymond has been receiving sub-par interim and annual evaluation ratings of2.5 out of 5.0. This is a negative score and means that Raymond can be placed into the Performance Monitoring Program, which can eventually lead to dismissal, and cannot be transferred to an elite or Special Unit. A transfer to a special unit is desirable because it is an opportunity for premium pay and more overtime so it effectively results in more income even without a promotion. 40. On January 7, 2015, Raymond requested leave to go to Washington, D.C. to attend a presidential task force meeting on policing, to which he had been formally invited. Platoon Commander Lt. Hayden denied this request, stating that she will not authorize leave because Raymond is not making his numbers and therefore his performance is below par. 41. On January 18,2015, Raymond had a conversation with Sgt. Campbell where Campbell stated that he was being forced to issue a failing interim evaluation on Raymond, by Captain Maldonado. 42. On January 18, 2015, Raymond received an interim evaluation score of2.5 from Cpt. Maldonado and Sgt. Campbell. 43. On January 21, 2015, Captain Maldonado ordered Sgt. Campbell to give Raymond an annual evaluation rating of2.5 out of5.0 for the year 2014. Raymond appealed this rating and it was never finalized. Soon after, Cpt. Maldonado was promoted and transferred and Captain Constantin Tsachas was appointed the Commanding Officer of Transit District 32.

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44. On August 3, 2015, Sgt. Campbell met with Raymond and his union representative, Police Officer Gentry Smith. Campbell told Raymond that Captain Tsachas had telephoned Campbell and given Campbell specific instructions on what to do to guarantee that Raymond's anticipated promotion to Sergeant would be cancelled. The instruction given to Campbell by Tsachas was to give Raymond a 2.5 annual performance rating for the 2014 calendar year. 45. On August 5, 2015, Captain Tsachas completed Raymond's 2014 annual evaluation and ordered Sgt. Campbell to give Raymond a score of2.5 out of 5.0. Raymond was then issued a failing annual evaluation score of2.5 for the year 2014. This was a sub-par rating and was unfairly issued by Captain Tsachas to sabotage Raymond's promotion to Sergeant and give him a negative performance rating that would allow Tsachas to place Raymond on the performance monitoring program. Tsachas order to Campbell to issue a negative rating to Raymond irrespective of Raymond's actual performance, was improper not only because, Tsachas improperly usurped the role of Campbell as the direct supervisor who actually observed the performance, but also because Tsachas did not supervise Raymond in the year 2014. 46. Tsachas issuance of a 2.5 annual performance rating to Raymond for the year 2014, was an act of intentional racial discrimination and retaliation for Raymond's expressed opposition to the quota. 47. On August 19,2015, in further retaliation, on the order ofCpt. Tsachas, Raymond was issued an interim evaluation score of 2.0 out of 5.0 for his continuing opposition to the quota.

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48. On September 2, 2015, Cpt. Tsachas further retaliated against Raymond by ordering Sgt. Campbell to assign Raymond to a punitive post until Raymond stopped resisting the quota. The punitive post was a fixed post at the Clark Street OMEGA booth. Raymond was given that assignment for an unprecedented 11 out of 19 days that Raymond worked in the month of August 2015. No other officer was assigned to that booth for more than 5 days in a month. 49. On September 24,2015, Cpt. Tsachas punished Raymond for not submitting a vacation leave request in a timely manner. Two white police officers in exactly the same position as Raymond who also failed to submit a vacation leave request, Officers Reddan and Sawyer, were not similarly punished or even reprimanded in any way. Raymond, however, was charged with a command discipline and was punished by having two days and four hours of earned vacation time being taken from him by Cpt. Tsachas. 50. Captain Tsachas issuance of a CD to Raymond and the subsequent punishment was an act of intentional racial discrimination and retaliation. 51. White police officer Michael Desrosiers who was assigned to Transit District 32, and under Captain Tsachas command at the same time as Raymond, and had enforcement activity numbers similar to or lower than Raymond's also failed to meet the enforcement activity quota, but unlike Raymond, Officer Desrosiers was never given a negative performance evaluation or punished in any way. 52. On September 24, 2015, Captain Tsachas threatened Raymond by telling him that he, Tsachas, will prevent Raymond's anticipated promotion to sergeant if Raymond continues to denounce the quota and fail to meet the quota.

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53. On October 15,2015, Cpt. Tsachas threatened again to sabotage Raymond's anticipated promotion to Sergeant. Cpt. Tsachas carried out this threat. 54. On December 7, 2015, Raymond is summoned before a review board chaired by Deputy Commissioner of Personnel Michael Julian, to discuss Raymond's lack of enforcement activity and possible promotion to Sergeant. 55. On December 10, 2015, Deputy Commissioner Michael Julian cancels Raymond's promotion to Sergeant yet endorses the promotion to Sergeant of white police officer Shaun Tanner who is comparable to Raymond in that he was also called before the review board. Officer Tanner was promoted while Raymond was not. The failure to promote Raymond under the circumstances was an act of intentional racial discrimination and retaliation. 56. Police officer Raymond was passed over for promotion three times, on December 17, 2015, January 28, 2016 and May 2"ct, 2016. 57. On January 2, 2016, Raymond is punitively transferred from Transit District 32 to the 7th Precinct, by Deputy Commissioner Julian, in retaliation for denouncing the quota.
58. Plaintiff Sandy Gonzalez, is a Hispanic male ofDominican Republic origin and a police officer currently posted to the 40th Precinct of the NYPD, located at 257 Alexander Avenue, Bronx, New York. P.O. Gonzalez joined the NYPD in 2002 and has been assigned to the 40th Precinct, since March 2004. 59. In December 2013, Gonzalez was assigned to the Complaint Room of the 40th Precinct. He received this temporary non-patrol assignment at that time for a two day

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period because he was on limited duty as a result of a digestive illness. At the time, his supervisor was Lt. Andrew Hatki, a white male. 60. Lt. Hatki was assigned to the 401h Precinct in June 2013. Soon after he arrived, he told Gonzalez on various occasions that Gonzalez needed to bring up his enforcement numbers and that the target was at least one arrest and twenty summons a month. Gonzalez told Lt. Hatki that he was doing what he could do. Gonzalez explained to Lt. Hatki that he was responding to calls, the radio was busy, and he was not slacking off in any way. Lt. Hatki then explained to Gonzalez that keeping up his enforcement activity numbers was something that Gonzalez had to do as a police officer, no matter the circumstances. Lt. Hatki bluntly told Gonzalez that if he did not get more enforcement activity, he would receive a low performance evaluation rating. 61. On December 30, 2013, while Gonzalez was assigned to take complaints, he took a moment to call his five year old daughter who was celebrating her birthday on that day. While Gonzalez was on the phone and in the presence of other officers and some members of the public, Lt. Hatki addressed Gonzalez in a dis-respectful tone and stated, "Sandy, get your ass of that chair and go to the desk". Gonzalez obeyed but he was highly offended by the manner in which Lt. Hatki addressed him. 62. Later on December 30, 2013, in a private discussion between Lt. Hatki and Gonzalez, Hatki stated that Gonzalez was underperforming for the entire year of 2013 because he had not made enough arrests or written enough summons. Gonzalez explained to Hatki that he could not write as many summons as Hatki desired because for two to three days out ofthe work week, he was assigned to critical response or sent downtown

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on counter terrorism patrols or on hospital watch posts, which usually involves just standing and observing, and offers no opportunity to write summonses or make arrests. 63. On January 5, 2014, Lt. Hatki punished plaintiff Gonzalez for his low enforcement activity numbers by separating him from his partner and assigning him to a fixed solitary foot post. Prior to January 5, 2014, PO Gonzalez's patrol partner was Police Officer Jorge Gonzalez. At roll call on January 5, 2014, Lt. Hatki announced that he was separating plaintiff Gonzalez from his partner, and withdrawing him from his regular patrol assignment. Instead, Lt. Hatki assigned plaintiff Gonzalez to a fixed solitary foot post at the intersection of Third Avenue and 1381h Street, in the Bronx. The weather condition was bad on that day. There was an ongoing blizzard. The pavement was icy and the ground was slushy due to a mixture of snow and rain that fell throughout the day. 103. Plaintiff Gonzalez's separation from his partner was an act of punishment because ordinarily established patrol partners are not separated unless it is un-avoidable. Also, Lt. Hatki told Gonzalez that his intention in separating the partners was to punish Gonzalez for not producing enough summons and arrests. Lt. Hatki also told PO Jorge Gonzalez that the reason for the separation was so that PO Jorge Gonzalez would not suffer from collateral damage while working with plaintiff Gonzalez. In other words, Lt. Hatki stated that he did not want PO Jorge Gonzalez to suffer or experience punishment specifically meant for PO Sandy Gonzalez. 64. Plaintiffs Gonzalez's assignment to a fixed foot post especially in bad weather, was an act of punishment because there is no necessity for a constant police presence at that spot during a blizzard. Additionally, Lt. Hatki told Gonzalez that his intention in assigning Gonzalez to the foot post was to punish him for not producing enough

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summons. Being assigned singly to an unnecessary fixed post, especially during bad weather, is a well-recognized punitive assignment in the 40th Precinct. The previous commander of the 40th Precinct, John Nicholson, once wrote a threatening note that was handed to plaintiff Gonzalez, which basically stated that under performing officers get assigned to a fixed foot post in the rain and snow. 65. On January 5, 2014, while at his assigned fixed post, as he was walking around stamping his feet and trying to get warm, plaintiff Gonzalez slipped and fell and was injured. With the permission of Sergeant Quinones, his then direct supervisor, he was taken to Jacobi Hospital for treatment. 66. Following this incident, Lt. Hatki accused officer Gonzalez of having pretended to fall and initiated an investigation into this alleged misconduct. Upon information and belief, Lt. Hatki personally conducted this investigation by reviewing surveillance camera footage from the area of the fixed foot post. 67. In January 2014, plaintiff Gonzalez was informed by Lt. Hatki that his annual performance evaluation rating for the year 2013 was 2.5 out of 5. 2.5 is a negative evaluation rating and put officer Gonzalez at the risk of being placed on the performance monitoring program. Such a low rating was unfair and not based on Officer Gonzalez's actual performance. 68. It was racially discriminatory for Lt. Hatki to give Gonzalez a negative performance evaluation rating based on his enforcement activity numbers because white police officers in the same command, unit, squad and shift as the plaintiff, with equal or lower enforcement activity numbers, received annual performance evaluation ratings

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higher than 2.5 for the same annual rating period. Some of those white officers are Police Officers, Moynihan, Sontag, Calandra, Lebrini and Warkenthen. 69. Plaintiff Gonzalez appealed the annual performance evaluation score of2.5 given to him by Lt. Hatki. On February 4, 2014, Gonzalez met with the Commander of the 40th Precinct, Deputy Inspector Chrisopher McCormack, a white male, to appeal the negative rating. Lt. Batelli was also present at the meeting. During this meeting, both senior officers yelled at Gonzalez for not meeting the targeted number of arrests and summons, and threatened to place him on the performance monitoring program. DI McCormack denied the appeal and upheld the negative performance rating score. Plaintiff Gonzalez then appealed that determination to the Bronx Borough Command level and that appeal was also denied.
70. On February 6, 2014, plaintiff Gonzalez made a written complaint to the NYPD's Internal Affairs Bureau (lAB) and simultaneously to the federal Equal Employment Opportunity Commission (EEOC). The complaint detailed three categories of violations within the 40th Precinct, all of which involved Gonzalez, as follows; enforcement of an illegal quota; the misclassification of offences and downgrading of felonies; and racial discrimination against minorities by virtue of a hostile work environment. The offenders were primarily, DI Christopher McCormack, and Lt. Andrew Hatki, Gonzalez's platoon commander. In the complaint, Gonzalez stated that he was being racially discriminated against as a Latino male by being forced to work in a hostile environment by Lt. Hatki. Gonzalez also complained that Lt. Hatki and DI McCormack were forcing him and other police officers to meet a quota of at least 1 arrest and 20 summonses a month and punishing him when he failed to reach that target. Gonzalez also detailed how DI

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McCormack was ordering Gonzalez and other police officers to mis-classifY offenses and downgrade felonies. 71. As a result of this complaint, the lAB and the EEOC began investigations into the allegations made in Gonzalez's written complaint aforesaid. 72. Upon information and belief, DI McCormack and Lt. Hatki both believed that Gonzalez was the source of the investigations. 73. On March 28,2014, Gonzalez was interviewed by the lAB over the allegations made in the complaint. Rather than an investigation into the allegations, the interview turned into an investigation of Gonzalez's law enforcement activity. The interviewing officer, a Captain Benjamin, questioned Gonzalez closely regarding his enforcement activity record. 74. In April2014, in retaliation for his complaint, DI McCormack placed Gonzalez in the performance monitoring program. The performance monitoring program put officer Gonzalez on a probationary status where he was no longer entitled to the full benefits of his employment, and could be terminated. 75. In December 2014, Gonzalez applied for a transfer to the City wide Task Force but was denied because of his negative (2.5) annual performance evaluation score for the 2013 annual period, and the fact that he was on the performance monitoring program. 76. In May 2015, while Gonzalez was on assigned duty at Lincoln Hospital, he was approached by a Supervisor, Sergeant Tameika Goode, who, in the presence of her driver, Police Officer Michael Gallow, accused Gonzalez of tape recording his conversations with her. Upon information and belief, this accusation was based on information Sgt. Goode had received from DI McCormack and Lt. Hatki who had told

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Goode and other co-workers of plaintiff Gonzalez, that Gonzalez was "a rat" and was recording everyone in the precinct. 77. In July 2015, it was widely reported in the media, including the Daily News of July 17, 2015, that an NYPD internal investigation had revealed multiple cases of downgrading of felonies in the 40th Precinct. As a result of the Investigation, nineteen police and ranked officers in the 40th Precinct were charged with misconduct and faced disciplinary proceedings. Those 19 members of the force were transferred out of the 40th Precinct.
78. On or about July 20, 2015, then Police Commissioner William Bratton visited the precinct in the wake of the felony misclassification scandal. On this visit, Commissioner Bratton addressed an extraordinary roll call that included all platoons including midnights and all day tours. During this roll call, Commissioner Bratton stated to the entire precinct that a disgruntled officer among them had dropped the dime on the entire precinct. It was understood that plaintiff Gonzalez was the officer that the Commissioner was referring to, because ofthe complaint that Gonzalez had made in February 2014, which appeared to have started the initial investigation. Upon information and belief, DI McCormack had stated to multiple members of the 40th Precinct that Gonzalez was recording their conversations and had leaked the story to the media. 79. At the roll call on July 20, 2015, then Chief of Department, and current Commissioner ofPolice, James O'Neill, who was also present, asked if anyone was recording the roll call. No one responded. Sergeant Tameika Goode, was also present at this roll call.

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80. From July 2015, Sgt. Goode, under instructions from Lt. Hatki, now the Administrative head of the Precinct, only assigned Gonzalez an average of 5 to 8 patrols days per month. This ensured that Gonzalez would never be able to meet the monthly quota of summons or arrests and thus would be in a position of chronically underperforming with respect to his enforcement activity numbers. Instead, Gonzalez was assigned to non-patrol tasks such as escorting hospitalized prisoners, prisoner transport and critical response vehicles. 81. On August 3, 2015, Sgt. Goode, under instructions from Lt. Hatki, in further retaliation, issued Gonzalez with an underserved minor violation for not being on his assigned post at Station House Security, when in fact, Gonzalez had left the post briefly with permission, in order to write a written report for Sergeant Goode regarding an earlier assignment.
82. In further retaliation for his complaints, on August 22,2015, Gonzalez was issued a command discipline by Sgt. Goode under instructions from Lt. Hatki, for allegedly recording Sergeant Goode with a cell phone. Plaintiff Gonzalez was improperly found guilty of this charge by Lt. Hatki with no adjudication and without being given a chance to defend himself. 83. On or about August 26, 2015, during roll call, as Gonzalez and other officers waited for their assignments to be announced, Desk Officer Sgt. Goode, speaking to the entire platoon, stated that Gonzalez was not to be trusted because he was videotaping and recording everyone at the precinct. Gonzalez was immediately and severely affected by this announcement and he experienced a cardiac episode, and fainted. Gonzalez was taken by ambulance to the New York and Presbyterian Hospital for emergency medical

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treatment and was admitted with chest pains and loss of consciousness. He was discharged the next day. 84. In further retaliation, Lt. Hatki denied Gonzalez line of duty designation for his cardiac injury and upon information and belief, destroyed and or failed to properly file an AIDED card regarding the incident, in order to support his improper denial of line of duty designation for the injury. 85. Gonzalez's cardiac injury happened during roll call and an AIDED card was prepared by Police Officer Encarnacion. This AIDED card was hand delivered by PO Encarnacion to Lt. Hatki but was never filed and has disappeared from the record. As a consequence of denial of line of duty designation, neither officer Gonzalez's medical insurance, or the NYPD, paid for his medical bills from the cardiac injury which was approximately $10,000 (ten thousand dollars). Gonzalez was denied line of duty designation for the incident and denied authorization to see a cardiologist as part of line of duty medical treatment. 86. The AIDED card that was suppressed by Lt. Hatki in order to retaliate against Gonzalez stated in sum that Gonzalez fainted as a result of Sgt. Goode's comments during roll call. 87. On September 7, 2015, Gonzalez wrote to the lAB and the OEEO complaining about the intensified retaliation that he was experiencing including the incidents at roll call. 88. On October 10,2015, in further retaliation, Gonzalez was issued with another Command Discipline also for allegedly recording Sgt. Tameika Goode.

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89. On November 25, 2015, Gonzalez was found guilty ofhaving recorded Sgt. Goode on August 22,2015, with no adjudication or investigation. Although Gonzalez tried to appeal this determination, he was never given the opportunity to do so. 90. On November 27,2015, in further retaliation, Gonzalez was unfairly issued with two minor violations for having a cap device that did not march his shield, and for a defective holster. Captain Girven put Gonzalez on the minor violations log for both violations because Gonzalez was a target for punishment by the leadership of the precinct, and had been labeled a 'rat'. 91. Plaintiff Ritchie Baez is a Latin American male originally from the Dominican Republic. He joined the NYPD in the rank of police officer in July 2004, and was assigned to the 40th precinct, in January 2005. 92. In the 40th Precinct, since January 2013, police officers such as Ritchie Baez are required to meet an enforcement activity target of at least 1 arrest and 20 summons, per month. Failure to meet this quota resulted in a low evaluation, assignment to punitive posts such as fixed foot posts, and placement in the Performance Monitoring Program, which could lead to dismissal. 93. In the 40th Precinct, although the enforcement activity target or quota, every month, was the same for all police officers, black and Iatino police officers such as Ritichie Baez received punishment for low numbers while white police officers in the same squad with similar numbers or even worse numbers did not receive the same punishment. 94. In January 2014, plaintiffBaez was issued an unfair performance evaluation rating of2.5 out of 5.0 for the 2013 annual rating period by DI Christopher McCormack,

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the Commanding Officer of the 401h Precinct. 2.5 is a negative performance score that exposed Baez to placement into the performance monitoring program. 95. It was racially discriminatory and unfair for DI McCormack to award Baeza negative performance rating for the year 2013, because in that year, Baez's actual performance as a police officer merited a score of at least 4.0. 96. It was racially discriminatory and unfair for DI McCormack to award Baez a negative performance rating for not meeting the quota, because comparatively placed white police officers in the same unit, with similar activity numbers for the same period, including police officers Andrew Pellegrino, Keith Moynihan, Sontag, Calandra, Lebrini and Warkenthen, did not get the same punishment. The white police officers received higher annual performance evaluation scores of 3.5 and above, and were not placed on performance monitoring. 97. PlaintiffBaez appealed the 2.5 rating. On January 27, 2014, Baez was called to the office ofDI McCormack to adjudicate the appeal. Lt. Batelli was also present at this meeting. PlaintiffBaez explained to the two superior officers that in the year 2013, he had actually done excellent police work as detailed in the following paragraph, and expected a higher performance evaluation score. 98. In the year 2013, plaintiff Ritchie Baez performed great police work in three instances; In May 2013, Officer Baez assisted a citizen of Spanish descent whose car had been stolen. Officer Baez used his knowledge of Spanish to interview the victim and realizing that time was of the essence, quickly performed a canvass of the immediate neighborhood for the missing vehicle with the result that he immediately found the stolen vehicle and arrested the perpetrator who was charged with Grand Larceny Auto; in

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October 2013, Officer Baez was helping Housing police provide crowd control duties at 152"d Street, when he recognized a face in the crowd as an accused robber from a wanted poster. During the robbery, the suspect was accused of slashing her victim several times in the face. Acting quickly, Officer Baez promptly apprehended and arrested the suspect; The same year, Officer Baez was assisting a Special Operations Unit during an automobile stop. He observed an individual being interrogated by the Sergeant of the Special Operations Unit. Officer Baez realized that he had seen this individual on a wanted poster as a known gang member being sought by the police. When the individual gave a fictitious name to the Sergeant, Officer Baez alerted the Sergeant and was proven correct by a check ofthe NYPD records, leading to the arrest of the wanted individual. Despite the above, Plaintiff Baez was given a low performance evaluation in 2013 because his arrest and summons numbers did not meet the quota. 99. DI McCormack was not swayed by Baez's explanation and denied the appeal. McCormack stated that Baez could write 500 criminal court summons per day on East 1381h Street, if he really wanted to. McCormack told Baez that the reason he received a negative evaluation was because he had not written enough criminal court summons. 100. On March 31, 2014, plaintiffBaez was placed in the Performance Monitoring Program by DI McCormack due to his negative performance rating. 101. It was racially discriminatory for DI McCormack to place police officer Baez in the performance monitoring program for negative performance because white police officers such as Police Officers, Pellegrino, Moynihan, Sontag, Calandra, Lebrini and Warkenthen, whose performance was at the same level or worse than Baez, were not placed into the performance monitoring program.

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102. Plaintiff Pedro Serrano is a Latino male originally from the commonwealth of Puerto Rico. He was hired by the NYPD as a police officer in 2004 and assigned to the 40th Precinct the same year. 103. Plaintiff Serrano experienced first hand the negative effect ofthe quotas imposed by his supervisors on the minority community where he patrolled in the South Bronx. For his failure to meet the quota, he received a negative performance evaluation. One of his supervisors Executive Officer Materasso, told him that in order for him to get a better evaluation, he must arrest, summon and stop and frisk more people. Plaintiff Serrano explained to Officer Materasso, the deputy commandant of the 40th precint, that the residents of the 40th precint are predominantly low income and that he did not feel right about giving them spurious summons. She disagreed and referred to the residents of the 40th precint as "animals". Plaintiff Serrano, of Puerto Rican origin similar to many residents of the South Bronx, was deeply offended. 104. As a police officer in the 40th precinct, Officer Serrano was constantly pressured by all his supervisors to produce at least 20 summons, 1 arrest, and 5 stop and frisks, a month. If he failed to meet this target, he would be punished with low performance evaluations, punitive foot posts and forced assignment of arrests. An assignment of arrest happens when a superior officer would take a police officer along on patrol, identifY a vagrant or homeless person, and order the police officer to arrest that person immediate! y. 105. Deputy Inspector Christopher McCormack, the Commanding Officer of the 40th Precinct from September 2011, and Captain Martine Materasso, an Executive Officer of the 40th Precinct in the years, 2011, 2012 and 2013, were the supervisors who constantly

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put pressure on Serrano to meet the quota and punished him, if he failed to make the quota. 106. On January 7, 2012, Serrano met with Captain Materasso to discuss his annual performance evaluation for the year 2011. Cpt. Materasso had scored Serrano a 3.0 out of 5.0 and Serrano felt that it was unfair, and appealed it. During this meeting, Materasso told Serrano that the reason he received a low evaluation was because his enforcement activity was too low, specifically, because he did not write enough summons and didn't get enough stop and frisks. Serrano attempted to explain to Cpt. Materasso that it was unreasonable to expect him to get the targeted number of summons and stop and frisks no matter the circumstances and that it constituted a quota. Captain Materasso responded by stating that she can do what she wants and threatened Serrano that if he does not get the required number of summons, he will receive an even lower performance evaluation score. 107. In the spring of 2012, while driving by Beekman Avenue and East 141 Street, in the presence of police officer Serrano, and his partner, Police Officer Chae, DI McCormack saw a black male standing against a wall. DI McCormack got out of his car, walked up to the black male and accosted him. He opened the man's zipper, pulled down the man's pants and exposed the man's penis. He then grabbed the man's penis and passed his hands between the man's butt cheeks. DI McCormack then pulled out some narcotics and gave it to his driver. Serrano was deeply offended by his Commander's conduct and resolved to report it. 108. On or about June 1, 2012, plaintiff Serrano wrote a written complaint to the United States Office of Equal Employment Opportunity, (EEOC), which was also

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referred to the NYPD's Office of Equal Employment Opportunity (OEEO), by the EEOC. In that complaint, Serrano stated that DI McCormack and Captain Materasso were discriminating against him as a Latino by forcing him to work in a racially hostile environment. Serrano also detailed that how DI McCormack and Capt. Materasso were forcing him and other police officers to downgrade felonies, and also that they compelled Serrano and other police officers to meet a quota of law enforcement actions every month. Serrano also contacted the New York Civil Liberties Union and gave them a summary of the complaint. Finally, Serrano at the same time made similar complaints in writing several times to his Union (PBA) delegate. 109. Upon information and belief, DI McCormack and Capt. Materasso became aware of Serrano's complaints against them on or about February 7, 2013, at a COMSTAT meeting. Immediately upon their return from this meeting, at a roll call on February 7, 2013, DI McCormack stated, "some people in this roll call are afraid of work and the tail is wagging the dog instead of the dog wagging the tail". 110. Upon his return from the COMSTAT meeting aforesaid, DI McCormack commenced a series of retaliatory action against Officer Serrano. On February 7, 2013, was taken of his usual patrol assignment and assigned to a solitary fixed foot post at 339 Exterior Avenue. While Serrano was at that post, that same night, at various times, five different supervisors came to inspect him and make sure that he was at the post and sign his memo book including Sgt. Monroe, Lt. Mack, Capt. Materasso, DI McCormack and the Administrative Lieutenant. This is highly unusual and an indication that the object of the post is punishment. While at the post, he was visited by Sergeant Monroe who ordered him to return briefly to the precinct and bring Capt. Materasso a copy of his

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memo book. After he returned to his post, both DI McCormack and Cpt. Materasso approached him and observed him from an unmarked vehicle for a period oftime. It is an extra ordinary event for the Commander of a Precinct to visit a solitary police officer at a fixed post in order to sign his memo book. The five inspections were intended to convey a threat to Serrano that he would be under increased scrutiny and would be punished for minor or pretextual infractions. 111. In further retaliation, beginning February 7, 2013, DI McCormack punished Serrano by sending him outside the precinct on details. That week, Serrano returned from from his posting one day to find that his locker had been ransacked and someone had pasted rat stickers on his locker. 112. In further retaliation, in February 7, 2013, Serrano was denied leave even though he requested days off in the usual manner. 113. In February 2013, Cpt. Materasso gave plaintiff Serrano a performance evaluation score of 3.0 out of 5.0 for the 2012 annual period. 114. It was unfair and racially discriminatory for Cpt. Materasso to give Serrano a performance evaluation score of3.0 for 2012, because by any objective basis, Serrano deserved a score of at least 4.0 or above for that year. In the year 2010, prior to falling under Materasso' s command, Serrano had a total of 8 arrests, 10 criminal court (C) summons, multiple moving (B) summons, multiple parking (A) summons, and several stop and frisks (250's), and he received a passing grade of 4.0 on the annual performance evaluation for that year. In the year 2011, Serrano had a total of 5 arrests, 2 C summons, multiple Band C summons, and three 250's and he received an annual performance evaluation rating of3.0 from Cpt. Materasso. For the year 2012, Serrano had 8 arrests,

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and approximately double the number ofC, B, and A summons and 250's from the previous year, and still received an annual performance rating of3.0 from Cpt. Materasso. 115. The evaluation score of3.0 for the 2012 annual period was racially discriminatory because, in 20 12, three white police officers who had the same as, similar to, or worse enforcement activity numbers than Serrano, all received annual evaluation scores of 4.0 or better. Two of those white police officers were Police Officers Sontag and Moynihan. 116. Plaintiff Serrano appealed his 2012 annual evaluation score. In February 2013, he met with DI McCormack to adjudicate the appeal. DI McCormack told Serrano that Serrano did not stop enough black people. McCormack also told Serrano that in his opinion, Serrano purposely failed to write stop and frisks and didn't stop the right people at the right place and at the right time. According to McCormack, the right people were men of color between the ages of 14 and 21 years old. McCormack told Serrano that if he sees a crowd of people in front of a deli or building, he should stop and frisk them. Serrano explained that in order for him to properly stop and frisk the hypothetical people in front of the deli, they would have to be suspected of some penal law misdemeanor or felony rather than mere suspicion of blocking traffic, which is neither. McCormack disagreed. McCormack insisted that if Serrano asks a crowd of people to disperse, that amounted to a stop and frisk and Serrano should then write 250's for the stop and frisks. 117. DI McCormack was upset that Serrano disagreed with him on this issue. He yelled at Serrano and stated that Serrano did not know how to do his job. He also ordered the Administrative Lieutenant to send Serrano on stop and frisk training. He did not allow Serrano an opportunity to address other issues raised on the appeal. He basically just

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interrogated Serrano about stop and frisks. During this meeting, McCormack told Serrano that he was aware of Serrano's EEOC/OEEO complaint. 118. Shortly after meeting with DI McCormack to adjudicate the appeal, Sergeant Gomez, on McCormack's orders, seized Serrano's memo book and Serrano was escorted by they Integrity Control Officer (ICO) from the meeting to his locker where his locker was searched by the ICO, a Lieutenant. 119. In February 2013, Serrano had a discussion with DI McCormack where DI McCormack threatened Serrano by stating that he knew that Serrano was slated to testify in the ongoing Floyd (stop and frisk federal civil rights) law suit and swore that if Serrano testified, McCormack would go through Serrano's memo book and issue a command discipline for every mistake that Serrano made in his memo book. 120. On March 20 and March 21, 2013, Officer Serrano testified in the trial of the Floyd action. The substance of his testimony was that he was compelled to racially profile blacks and Iatinos by his supervisors including DI McCormack and Capt. Materasso. 121. Approximately one month later, on or about AprilS, 2013, Serrano was abpruptly transferred out of the 40th Precinct without warning, and sent to the 33rd Precinct. Serrano was on vacation when the transfer was announced. He had been in the 40th Precinct for nine years previous to the transfer and that was his home in the NYPD. Serrano had not requested a transfer. The only purpose of the transfer was to punish Serrano. 122. At the 33rd Precinct, Serrano was assigned to the day tour rather than the midnight tour which was his tour in the 40th Precinct, therefore, he lost his night differential pay which amounted to about $5,000.00 annually.

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t•t Cause of Action: Edreweene Raymond against Constantin Tsachas for Discrimination in Violation of The Civil Rights Act of 1866;The 14th Amendment to the United States Constitution; 42 U.S.C. Section 1981; 42 U.S.C. Section 1983 and 42 U.S.C. Section 1985 123. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 124. By unfairly subjecting Raymond to command discipline for untimely submission of a vacation request while two white officers were not disciplined for the same offense and for subjection Raymond to unfair command discipline for failure to meet the enforcement activity quota while a white officer with the same or a lower level of quota compliance was not punished in any way, defendant Tsachas purposefully and intentionally discriminated against Raymond on the basis of race and national origin, and thus violated the rights of Plaintiff Edreweene Raymond under the equal protection clause ofthe 14th Amendment and under 42 U.S.C. Section 1981, to be free from racial discrimination. 125. As a result of this violation, plaintiff's Edreween Raymond is entitled to compensatory damages, punitive damages, and an award of attorney's fees. 2nd Cause of Action: Edreweene Raymond against Constantin Tsachas for Discrimination in Violation of The New York States human rights law
126. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 127. By unfairly subjecting Raymond to command discipline for untimely submission of a vacation request while two white officers were not disciplined for the same offense and for subjection Raymond to unfair command discipline for failure to meet the

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enforcement activity quota while a white officer with the same or a lower level of quota compliance was not punished in any way, defendant Tsachas purposefully and intentionally discriminated against Raymond on the basis of race and national origin, and thus defendant Tsachas violated the rights of plaintiff Raymond under New York State's Human Rights Law to be free from racial discrimination. 128. As a result of this violation, plaintiff Raymond is entitled to compensatory damages, punitive damages and an award of attorney's fees.
3rd Cause of Action: Raymond against Tsachas for discrimination in violation of New York City's Human Rights Law, Local Law 59 of 1986, as amended by Local Rule 39 of 1991. §§ 8-101, et seq.
129. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 130. By unfairly subjecting Raymond to command discipline for untimely submission of a vacation request while two white officers were not disciplined for the same offense and for subjection Raymond to unfair command discipline for failure to meet the enforcement activity quota while a white officer with the same or a lower level of quota compliance was not punished in any way, defendant Tsachas purposefully and intentionally discriminated against Raymond on the basis of race and national origin, and thus defendant Tsachas violated the rights of plaintiff Raymond under New York City's human rights law, to be free from racial discrimination. 131. As a result of this violation, plaintiff Raymond is entitled to compensatory damages, punitive damages, and an award of attorney's fees.

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4th Cause of Action: Sandy Gonzalez against Christopher McCormack for Discrimination in Violation of The Civil Rights Ad of 1866;The 14th Amendment to the United States Constitution; 42 U.S.C. Section 1981; 42 U.S.C. Section 1983 and 42 U.S.C. Section 1985 132. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 133. By unfairly subjecting Gonzalez to low performance ratings and designation to the Performance Monitoring Program defendant McCormack purposefully and intentionally discriminated against Gonzalez on the basis of race and national origin, and thus violated the rights of Plaintiff Gonzalez under the equal protection clause of the 14th Amendment and under 42 U.S.C. Section 1981, to be free from racial discrimination. 134. As a result of this violation, plaintiffs Sandy Gonzalez is entitled to compensatory damages, punitive damages, and an award of attorney's fees. 5th Cause of Action: Sandy Gonzalez against Christopher McCormack for Discrimination in Violation of The New York States human rights law
135. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 136. By unfairly subjecting Gonzalez to low performance ratings and designations to the Performance Monitoring Program, defendant McCormack purposefully and intentionally discriminated against Gonzalez on the basis of race and national origin, and thus defendant McCormack violated the rights of plaintiff Gonzalez under New York State's Human Rights Law to be free from racial discrimination. 137. As a result of this violation, plaintiff Gonzalez is entitled to compensatory damages, punitive damages and an award of attorney's fees.

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6th Cause of Action: Sandy Gonzalez against Christopher McCormack for discrimination in violation of New York City's Human Rights Law, Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq. 138. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 139. By unfairly subjecting Gonzalez to low performance ratings and designations to the Performance Monitoring Program, defendant McCormack purposefully and intentionally discriminated against Gonzalez on the basis of race and national origin, and thus defendant McCormack violated the rights of plaintiff Gonzalez under New York City's human rights law, to be free from racial discrimination. 140. As a result of this violation, plaintiff Gonzalez is entitled to compensatory damages, punitive damages, and an award of attorney's fees. 7th Cause of Action: Ritchie Baez against Christopher McCormack for Discrimination in Violation of The Civil Rights Act of 1866;The 14th Amendment to the United States Constitution; 42 U.S.C. Section 1981; 42 U.S.C. Section 1983 and 42 U.S.C. Section 1985 141. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 142. By unfairly subjecting Baez to low performance ratings and designation to the Performance Monitoring Program defendant McCormack purposefully and intentionally discriminated against Baez on the basis of race and national origin, and thus violated the rights ofPlaintiffBaez under the equal protection clause of the 141h Amendment and under 42 U.S.C. Section 1981, to be free from racial discrimination. 143. As a result of this violation, plaintiff's Ritchie Baez is entitled to compensatory damages, punitive damages, and an award of attorney's fees.

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8th Cause of Action: Ritchie Baez against Christopher McCormack for Discrimination in Violation of The New York States human rights law
144. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 145. By unfairly subjecting Baez to low performance ratings and designations to the Performance Monitoring Program, defendant McCormack purposefully and intentionally discriminated against Baez on the basis of race and national origin, and thus defendant McCormack violated the rights ofplaintiffBaez under New York State's Human Rights Law to be free from racial discrimination. 146. As a result of this violation, plaintiff Baez is entitled to compensatory damages, punitive damages and an award of attorney's fees.
9th Cause of Action: Ritchie Baez against Christopher McCormack for discrimination in violation of New York City's Human Rights Law, Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq. 147. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 148. By unfairly subjecting Baez to low performance ratings and designations to the Performance Monitoring Program, defendant McCormack purposefully and intentionally discriminated against Baez on the basis of race and national origin, and thus defendant McCormack violated the rights of plaintiff Baez under New York City's human rights law, to be free from racial discrimination. 149. As a result of this violation, Ritchie Baez is entitled to compensatory damages, punitive damages and an award of attorney's fees.

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lOth Cause of Action: By Pedro Serrano against Christopher McCormack For Discrimination in Violation of the Civil Rights Ad of 1866; The 14th Amendment to the United States Constitution, 42 U.S.C. Sections 1981, 1983 and 1985. 150. All previous allegations ofthis Complaint are incorporated herein as if fully set forth below. 152. By unfairly giving Serrano a negative performance rating, defendant McCormack purposefully and intentionally discriminated against Serrano on the basis of race and national origin, and thus violated the rights of Plaintiff Serrano under the equal protection clause ofthe 141h Amendment and under 42 U.S.C. Section 1981, to be free from racial discrimination. 153. As a result of this violation, plaintiffs Pedro Serrano is entitled to compensatory damages, punitive damages, and an award of attorney's fees. 11th Cause of Action: Pedro Serrano against Christopher McCormack for Discrimination in Violation of The New York States human rights law
154. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 155. By unfairly giving Serrano a negative performance rating, defendant McCormack purposefully and intentionally discriminated against Serrano on the basis of race and national origin, and thus defendant McCormack violated the rights of plaintiff Serrano under New York State's Human Rights Law to be free from racial discrimination. 156. As a result of this violation, plaintiff Serrano is entitled to compensatory damages, punitive damages and an award of attorney's fees.

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12th Cause of Action: Pedro Serrano against Christopher McCormack for discrimination in violation of New York City's Human Rights Law, Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq. 157. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 158. By unfairly giving Serrano a negative performance rating, defendant McCormack purposefully and intentionally discriminated against Serrano on the basis of race and national origin, and thus defendant McCormack violated the rights of plaintiff Serrano under New York City's human rights law, to be free from racial discrimination. 159. As a result ofthis violation, plaintiff Serrano is entitled to compensatory damages, punitive damages and an award of attorney's fees. 13th Cause of Action: Sandy Gonzalez against Christopher McCormack For Retaliation Regarding a Discrimination Complaint made on Ses.tember 7, 2015, in Violation of The Civil Rights Act of 1866;The 14t Amendment to the United States Constitution; 42 U.S.C. Section 1981; 42 U.S.C. Section 1983 and 42 U.S.C. Section 1985 160. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 161. By unfairly issuing a CD to Gonzalez on October 10, 2015, finding Gonzalez guilty on of the charge on the CD without providing him with an opportunity to defend himself, and issuing two underserved minor violations to Gonzalez, McCormack purposefully and intentionally retaliated against Gonzalez for filing a discrimination complaint, and thus violated the rights of Plaintiff Gonzalez under the equal protection clause of the 141h Amendment and under 42 U.S.C. Section 1981, to be free from such retaliation.

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162. As a result of this violation, plaintiffs Sandy Gonzalez is entitled to compensatory damages, punitive damages, and an award of attorney's fees. 14th Cause of Aetion: Sandy Gonzalez against Christopher McCormack for Retaliation Regarding a Complaint of Discrimination Made on September 7, 2015, in Violation of The New York State's Human Rights Law
163. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 164. By unfairly issuing a CD to Gonzalez on October 10, 2015, finding Gonzalez guilty on of the charge on the CD without providing him with an opportunity to defend himself, and issuing two underserved minor violations to Gonzalez, McCormack purposefully and intentionally retaliated against Gonzalez for filing a discrimination complaint, and thus violated the rights ofPlaintiffGonzalez under New York State's Human Rights Law. 165. As a result of this violation, plaintiff Gonzalez is entitled to compensatory damages, punitive damages and an award of attorney's fees.
15th Cause of Action: Sandy Gonzalez against Christopher McCormack for Retaliation Regarding a Complaint of Discrimination Made on September 7, 2015, in violation of New York City's Human Rights Law, Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq. 166. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 167. By unfairly issuing a CD to Gonzalez on October 10, 2015, finding Gonzalez guilty on of the charge on the CD without providing him with an opportunity to defend himself, and issuing two underserved minor violations to Gonzalez, McCormack

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purposefully and intentionally retaliated against Gonzalez for filing a discrimination complaint, and thus violated the rights of Plaintiff Gonzalez under New York City's Human Rights Law. 168. As a result of this violation, plaintiff Gonzalez is entitled to compensatory damages, punitive damages, and an award of attorney's fees. 16th Cause of Action: Pedro Serrano against Christopher McCormack For Retaliation Regarding a Discrimination Complaint made on June 1, 2012, in Violation of The Civil Rights Act of 1866;The 14th Amendment to the United States Constitution; 42 U.S.C. Section 1981; 42 U.S.C. Section 1983 and 42 U.S.C. Section 1985 169. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 170. By removing Serrano from his usual patrol assignment, and re-assigning him to a fixed foot post, sending him outside the precinct on details, ransacking his locker and pasting stickers of rats to his locker, denying him leave despite his proper requests of days off in the usual manner, and giving him an unfair 3.0 out of 5.0 performance evaluation rating for the 2012 annual period, defendant McCormack intentionally and purposefully retaliated against Serrano for filing a discrimination complaint, and thus violated the rights of Plaintiff Serrano under the equal protection clause of the 14th Amendment and under 42 U.S.C. Section 1981 and 42 U.S.C. Section 1983, to be free from such retaliation. 171. As a result ofthis violation, plaintiff's Pedro Serrano is entitled to compensatory damages, punitive damages, and an award of attorney's fees.

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17th Cause of Action: Pedro Serrano a&ainst Christopher McCormack for Retaliation Regarding a Complaint of Discrimination Made on June 1, 2012, in Violation of The New York State's Human Rights Law
172. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 173. By removing Serrano from his usual patrol assignment, and re-assigning him to a fixed foot post, sending him outside the precinct on details, ransacking his locker and pasting stickers of rats to his locker, denying him leave despite his proper requests of days off in the usual manner, and giving him an unfair 3.0 out of 5.0 performance evaluation rating for the 2012 annual period, defendant McCormack intentionally and purposefully retaliated against Serrano for filing a discrimination complaint, and thus violated the rights of Plaintiff Serrano under New York State's Human Rights Law, to be free from such retaliation. 174. As a result of this violation, plaintiff Serrano is entitled to compensatory damages, punitive damages and an award of attorney's fees.
18th Cause of Action: Pedro Serrano against Christopher McCormack for Retaliation Regarding a Complaint of Discrimination Made on June 1, 2012. in violation of New York City's Human Rights Law, Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq. 175. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 176. By removing Serrano from his usual patrol assignment, and re-assigning him to a fixed foot post, sending him outside the precinct on details, ransacking his locker and pasting stickers of rats to his locker, denying him leave despite his proper requests of

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days off in the usual manner, and giving him an unfair 3.0 out of 5.0 performance evaluation rating for the 2012 annual period, defendant McCormack intentionally and purposefully retaliated against Serrano for filing a discrimination complaint, and thus violated the rights of Plaintiff Serrano under New York City's Human Rights Law, to be free from such retaliation. 177. As a result of this violation, plaintiff Serrano is entitled to compensatory damages, punitive damages and an award of attorney's fees.
19th Cause of Action: Edreweene Raymond against Constantin Tsachas for Retaliation in Violation of The t•t Amendment to the United States Constitution for Protected Speech made on November 22. 2014
178. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 179. By unfairly passing Raymond over for promotion, reducing his performance evaluation score, assigning him to a punitive posting, and giving him underserved failing and low evaluation scores from November 2014 to January 2015 and continuing, defendant Tsachas retaliated against Raymond, in violation Raymond's rights under the 1st Amendment to the United States Constitution. 180. As a result ofthis violation, plaintiffs Edreween Raymond is entitled to compensatory damages, punitive damages, and an award of attorney's fees.
20th Cause of Action: Edreweene Raymond against Constantin Tsachas for Retaliation, in Violation of New York State's Human Rights Law, for Protected Speech made on November 22. 2014
181. All previous allegations of this Complaint are incorporated herein as if fully set forth below.

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182. By unfairly passing Raymond over for promotion, reducing his performance evaluation score, assigning him to a punitive posting, and giving him underserved failing and low evaluation scores from November 2014 to January 2015 and continuing, defendant Tsachas retaliated against Raymond, in violation of Raymond's rights under New York State's Human Rights Law. 183. As a result ofthis violation, plaintiff Raymond is entitled to compensatory damages, punitive damages and an award of attorney's fees.
21•t Cause of Action: Raymond against Tsachas for retaliation, in Violation of New York City's Human Rights Law, Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seg. 184. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 185. By unfairly passing Raymond over for promotion, reducing his performance evaluation score, assigning him to a punitive posting, and giving him underserved failing and low evaluation scores from November 2014 to January 2015 and continuing, defendant Tsachas retaliated against Raymond, in violation of Raymond's rights under New York City's Human Rights Law. 186. As a result of this violation, plaintiff Raymond is entitled to compensatory damages, punitive damages, and an award of attorney's fees. 22•d Cause of Action: By Sandy Gonzalez against The City of New York, William J. Bratton, James O'Neill, and Christopher McCormack, for Retaliation in Violation of The 11t Amendment to the United States Constitution, for Protected Speech made beginning on or about February 6, 2014
187. All previous allegations of this Complaint are incorporated herein as if fully set forth below.

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188. By labeling Gonzalez a "rat" who was recording everyone in the precinct, falsely accusing him of recording his supervisor Sergeant Tameika Goode, informing the entire 40th Precinct that Gonzalez was the person who had complained about corruption in the precinct leading to an official investigation, issuing two CO's to Gonzalez without giving him an opportunity to defend himself, denying Gonzalez a line of duty designation after he fainted during roll call and destroying necessary paperwork in order to achieve this denial, unfairly issuing Gonzalez with two minor violations, all beginning on or about May 2015, defendant's the City ofNew York, Bratton, O'Neill and McCormack, intentionally retaliated against Gonzalez's for protected speech, in violation of Gonzalez's rights under the 1st Amendment to the United States Constitution. 189. As a result of this violation, plaintiffs Sandy Gonzalez is entitled to compensatory damages, punitive damages, and an award of attorney's fees.
23rd Cause of Action: By Sandy Gonzalez against The City of New York, William J. Bratton, James O'Neill and Christopher McCormack, for Retaliation, in Violation of New York State's Human Rights Law, for Protected Speech made beginning from on or about February 6, 2014
190. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 191. By labeling Gonzalez a "rat" who was recording everyone in the precinct, falsely accusing him of recording his supervisor Sergeant Tameika Goode, informing the entire 40th Precinct that Gonzalez was the person who had complained about corruption in the precinct leading to an official investigation, issuing two CO's to Gonzalez without giving him an opportunity to defend himself, denying Gonzalez a line of duty designation after

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he fainted during roll call and destroying necessary paperwork in order to achieve this denial, unfairly issuing Gonzalez with two minor violations, all beginning on or about May 2015, defendant's the City ofNew York, Bratton, O'Neill and McCormack, intentionally retaliated against Gonzalez's for protected speech in violation of Gonzalez's rights under New York State's Human Rights Law. 192. As a result of this violation, plaintiff Sandy Gonzalez is entitled to compensatory damages, punitive damages and an award of attorney's fees.
24th Cause of Action: By Sandy Gonzalez against The City of New York, William J. Bratton, James O'Neill, and Christopher McCormack, For Retaliation in Violation of New York City's Human Rights Law, Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq, regarding protected Speech made beginning on or about February 6, 2014 193. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 194. By labeling Gonzalez a "rat" who was recording everyone in the precinct, falsely accusing him of recording his supervisor Sergeant Tameika Goode, informing the entire 401h Precinct that Gonzalez was the person who had complained about corruption in the precinct leading to an official investigation, issuing two CD's to Gonzalez without giving him an opportunity to defend himself, denying Gonzalez a line of duty designation after he fainted during roll call and destroying necessary paperwork in order to achieve this denial, unfairly issuing Gonzalez with two minor violations, all beginning on or about May 2015, defendant's the City ofNew York, Bratton, O'Neill and McCormack, intentionally retaliated against Gonzalez's for protected speech in violation of Gonzalez's rights under New York City's Human Rights Law.

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195. As a result of this violation, plaintiff Gonzalez is entitled to compensatory damages, punitive damages, and an award of attorney's fees.
25th Cause of Action: By Pedro Serrano against Christopher McCormack, for Retaliation in Violation of The 1st Amendment to the United States Constitution, for Protected Speech made beginning on or about June 1. 2012 and March 2013
196. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 197. By re-assigning Serrano from his usual patrol assignment to a solitary fixed foot post, inspections by multiple supervisors during a single shift, sending him outside the precinct on details, denying proper leave requests, and punitively transferring Serrano to another precinct where he was assigned to the day tour and lost his night differential pay, all beginning on or about February 7, 2013, defendant McCormack, intentionally retaliated against Serrano for protected speech, in violation of Serrano's rights under the 1st Amendment to the United States Constitution. 198. As a result of this violation, plaintiff Serrano is entitled to compensatory damages, punitive damages, and an award of attorney's fees. 26th Cause of Action: By Pedro Serrano against Christopher McCormack, for Retaliation, in Violation of New York State's Human Rights Law, for Protected Speech made beginning from on or about June 1, 2012 and March 2013
199. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 200. By re-assigning Serrano from his usual patrol assignment to a solitary fixed foot post, inspections by multiple supervisors during a single shift, sending him outside the

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precinct on details, denying proper leave requests, and punitively transferring Serrano to another precinct where he was assigned to the day tour and lost his night differential pay, all beginning on or about February 7, 2013, defendant McCormack, intentionally retaliated against Serrano for protected speech, in violation of Serrano's rights under New York State's Human Rights Law. 201. As a result of this violation, plaintiff Serrano is entitled to compensatory damages, punitive damages and an award of attorney's fees.
27th Cause of Action: By Pedro Serrano against Christopher McCormack, For Retaliation in Violation of New York City's Human Rights Law, Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq, regarding protected Speech made beginning on or about June 1, 2012 and in March 2013 202. All previous allegations of this Complaint are incorporated herein as if fully set forth below. 203. By re-assigning Serrano from his usual patrol assignment to a solitary fixed foot post, inspections by multiple supervisors during a single shift, sending him outside the precinct on details, denying proper leave requests, and punitively transferring Serrano to another precinct where he was assigned to the day tour and lost his night differential pay, all beginning on or about February 7, 2013, defendant McCormack, intentionally retaliated against Serrano for protected speech, in violation of Serrano's rights under New York City's Human Rights Law. 204. As a result of this violation, plaintiff Serrano is entitled to compensatory damages, punitive damages, and an award of attorney's fees.

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WHEREFORE, Plaintiffs, pray that the Court will: 1). Award compensatory damages to the plaintiffs against the defendants for the unlawful negative employment actions taken against them including loss of benefits, loss of earned time off, loss of upgrades and promotions, and loss of overtime. 2). Issue an order for damages requiring the defendants to reimburse and make whole, the plaintiffs for any and all benefits they would have received had it not been for defendant's illegal actions including, back pay with interest, benefits and seniority from the time ofthe Defendant's illegal actions taken against them. 3). Issue an order for an award of compensatory damages to the plaintiffs for the pain, suffering, emotional distress, loss of dignity, humiliation and damages to reputation and livelihood endured by the plaintiffs in amounts that are fair, just and reasonable, to be determined at trial; 4). Awards of compensatory damages to plaintiffs Raymond, Serrano, and Gonzalez, for violations of their rights to free speech pursuant to the First Amendment of the United States and pursuant to the Article 1, §8 ofthe New York State Constitution. 5). An award of punitive damages to plaintiffs against all defendants except the City of New York in an amount to be determined at trial. 6). Award plaintiffs all costs of this action and reasonable attorneys' fees, as provided for in 42 U.S.C. § 1988 and 42 U.S.C. § 1920.

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New York, New York July 11, 2018

By:

/S/'__::::::'s:;~~~::f--

Chukwuemeka Nwo oro (C -10 8)

30 Broad Street- Suite 1424

New York, New York 10004

(212) 785-1060

 
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x
EDREWEENE RAYMOND, ADHYL POLANCO, PEDRO SERRANO, SANDY GONZALEZ, RITCHIE BAEZ, JULIO DIAZ, FELICIA WHITELY, ROMAN GORIS, DERICK WALLER, KAREEM ABDULLAH, OLAYOKUN OLAGOKE, and WIDMARC PIERRE, individually and on behalf of a class of all others similarly situated,
Plaintiffs,
-v-
THE CITY OF NEW YORK, MAYOR OF THE CITY OF NEW YORK BILL DE BLASIO, in his individual and official capacity, FORMER POLICE COMMISSIONER WILLIAM J. BRATTON, in his individual capacity, POLICE COMMISSIONER JAMES P. O’NEILL, in his individual and official capacity, NYPD CHIEF OF DEPARTMENT CARLOS GOMEZ, in his individual and official capacity, and BUREAU CHIEF NYPD COMMANDING OFFICER OF PATROL SERVICES TERENCE MONAHAN, in his official capacity,1
Defendants.
-------------------------------------------------------x

No. 15-CV-06885-LTS

1

The captioned Defendants were named in the Amended Complaint, which has been

dismissed. In the instant motion for leave to file a Proposed Second Amended Complaint

that is the subject of this Opinion and Order, Plaintiffs seek to assert claims against the

City of New York, Mayor Bill de Blasio, Former Commissioner William J. Bratton,

Police Commissioner James P. O’Neill, Inspector and Former Commanding Officer of

the 40th Precinct Christopher McCormack, Deputy Inspector and former Commanding

Officer of Transit District 32 Constantin Tsachas, First Deputy Commissioner Benjamin

Tucker, and Deputy Commissioner, Department Advocate Kevin S. Richardson.

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OPINION AND ORDER

APPEARANCES: NWOKORO & ASSOCIATES, P.C.
By: Chukwuemeka Nwokoro, Esq.
30 Broad Street Suite 1424 New York, NY 10004 Attorneys for Plaintiffs

ZACHARY W. CARTER CORPORATION COUNSEL OF THE CITY OF NEW YORK
By: Kathleen Marie Comfrey, Esq. Yuval Rubinstein, Esq.
100 Church Street New York, NY 10007
Attorneys for Defendants

LAURA TAYLOR SWAIN, United States District Judge

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Plaintiffs Edreweene Raymond (“Raymond”), Adhyl Polanco (“Polanco”), Pedro Serrano (“Serrano”), Sandy Gonzalez (“Gonzalez”), Ritchie Baez (“Baez”), Julio Diaz (“Diaz”), Felicia Whitely (“Whitely”), Roman Goris (“Goris”), Derick Waller (“Waller”), Kareem Abdullah (“Abdullah”), Olayokun Olagoke (“Olagoke”), and Widmarc Pierre (“Pierre”) (collectively, “Plaintiffs”) brought this civil rights action, individually and on behalf of a putative class of all others similarly situated, pursuant to New York Labor Law § 215-a; 42 U.S.C. §§ 1981, 1983, 1985, and 1986; the New York State Human Rights Law (“NYSHRL”), New York Executive Law §§ 290, 296; the New York City Human Rights Law (“NYCHRL”), New York City Local Law 59 of 1986 as amended by Local Rule 39 of 1991, § 8-207; and New York State Constitution Article 1, § 8, against Defendants the City of New York (“the City”), Mayor of the City of New York Bill de Blasio (“Mayor de Blasio”), Former Police Commissioner William J. Bratton (“Former Commissioner Bratton”), Police Commissioner James P. O'Neill (“Commissioner O’Neill”), NYPD Chief of Department Carlos M. Gomez (“Chief Gomez”), and Bureau Chief NYPD Commanding Officer of Patrol Services Terence Monahan (“Chief Monahan”), (Mayor de Blasio, Former Commissioner Bratton, Commissioner O’Neill, Chief Gomez, and Chief Monahan are, together, referred to herein as the “Individual Defendants”) (collectively, ”Defendants“). The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.
In a 17-count Amended Complaint, Plaintiffs claimed that the NYPD maintains illegal arrest and citation quotas that are focused disproportionately on areas in which minorities reside, that minority officers are pressured to meet the quotas, and that minority officers suffer adverse and retaliatory employment actions when they refuse to enforce or complain about the quotas as discriminatory. (Docket Entry No. 31.) On March 6, 2017, this Court issued a

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Memorandum Opinion and Order granting Defendants’ motion to dismiss the Amended Complaint (the “Motion to Dismiss Opinion”), and permitting Plaintiffs to move for leave to file a Second Amended Complaint as to the claims and requests for relief asserted in the Amended Complaint’s Second, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, and Seventeenth Causes of Action. (Docket Entry No. 60.) Those claims were for preliminary and permanent injunctive relief, and alleged violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981, New York State and New York City Human Rights Laws, and of the First Amendment to the United States Constitution and 42 U.S.C. § 1983 based on alleged retaliation.2 (Id.)
On April 7, 2017, Plaintiffs moved for leave to file a Second Amended Complaint, appending their proposed Second Amended Complaint (“Proposed SAC”) to their motion papers. (Docket Entry No. 64, Docket Entry No. 66-1.) In the Proposed SAC, Plaintiffs seek to assert claims against the City, Mayor de Blasio, Former Commissioner Bratton, Commissioner O’Neill, Inspector and Former Commanding Officer of the 40th Precinct Christopher McCormack (“Inspector McCormack”), Deputy Inspector and former Commanding Officer of Transit District 32 Constantin Tsachas (“Deputy Inspector Tsachas”), First Deputy Commissioner Benjamin Tucker (“First Deputy Commissioner Tucker”), and Deputy Commissioner, Department Advocate Kevin S. Richardson (“Deputy Commissioner Richardson,” and, collectively with the aforementioned individuals, the “Proposed Individual Defendants,” and collectively with the City, the “Proposed Defendants”) for employment discrimination based on race, pursuant to 42 U.S.C. § 1983 and the New York State and New

2

The Motion to Dismiss Opinion dismissed with prejudice (1) Plaintiffs’ claims based on

alleged violations of New York Labor Law § 215-a, (2) claims based on an alleged

conspiracy to deny Plaintiffs’ rights in violation of 42 U.S.C. §§ 1985, 1986, and (3) New

York State Constitution Article 1, § 8 Free Speech Retaliation claims by Plaintiffs

Raymond, Polanco, Serrano, Waller, and Gonzalez. (Id.)

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York City Human Rights Laws; and violations of the First Amendment rights of Plaintiffs Raymond, Polanco, Serrano, Waller, and Gonzalez, pursuant to 42 U.S.C. § 1983, seeking damages and injunctive and declaratory relief.3 (Docket Entry No. 66-1.)
The Court has considered the parties’ submissions carefully. As explained below, Plaintiffs’ motion is granted in part and denied in part.
I. BACKGROUND The Court assumes the parties’ familiarity with the background of this case as recited in the Motion to Dismiss Opinion. See Raymond v. City of New York, No. 15-CV-6885LTS-HBP, 2017 WL 892350 (S.D.N.Y. Mar. 6, 2017). The following summary of Plaintiffs’ allegations is limited to those relevant to the claims asserted in the Proposed SAC. Plaintiffs’ non-conclusory factual allegations are taken as true for purposes of this motion practice. Plaintiffs allege that the NYPD maintains a policy that, in violation of a state law prohibiting quotas for law enforcement activities, directs its employees to perform a mandatory number of arrests or other police actions over a defined period of time as a performance standard, effectively establishing quotas, and that the policy “has led to a pattern and practice of discrimination against officers of Hispanic and African-American heritage on the basis of color, race and national origin.” (Proposed SAC ¶¶ 3, 19.) Plaintiffs allege that “failure to meet the

3

The Proposed SAC specifically recites that Tucker and Richardson are named as

defendants in their official and individual capacities (see Proposed SAC ¶¶ 65, 66) but is

silent as to the capacities in which the other Proposed Individual Defendants are named.

The Court assumes, however, for purposes of this motion practice that Plaintiffs intend to

sue each of the Proposed Individual Defendants in his individual and official capacities.

Chief Gomez, who was named as a Defendant in the Amended Complaint, is not named

as a defendant in the proposed SAC.

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illegal quota[s] result[] in adverse employment consequences, including but not limited to negative evaluations, termination or threat of termination, lost compensation, lost overtime, denial of promotions and upgrades, denial of overtime, loss of vacation days earned, loss of accrued time earned, punitive postings and punitive transfers, suspension, investigations, charges, suspensions, formal and informal discipline, assignments to undesirable and/or particularly dangerous tasks, punitive postings and punitive transfers, all leading and contributing to a hostile working environment and racially disparate treatment of the minority police officers.” (Id. ¶ 22.) Plaintiffs, who are Latino and African-American police officers currently or formerly employed by the NYPD, sue on behalf of themselves and of a putative class of “approximately 6,000” Black and Latino NYPD officers, “who will have been and will be affected by the imposition of the illegal quota system,” pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2). (See id. ¶¶ 213-17.)
Plaintiffs characterize the roles of the Proposed Individual Defendants as follows. In his capacity as mayor, Defendant Mayor de Blasio “routinely met with the Police Commissioner[,] Deputy Police Commissioners[,] and other high[-]ranking members of the NYPD to set policy and make recommendations relating to the polic[i]es, administration, practices, customs[,] and procedure[s] of the NYPD and relating to the disciplinary system and implementation of penalties within the NYPD.” (Id. ¶ 60.) In his capacity as Commissioner, Bratton was the “principal administrator” of the NYPD, “responsible for the application of the NYPD’s enforcement and administrative polic[i]es[,] including its internal investigatory and disciplinary process.” (See id. ¶ 61.) As Chief of Department, O’Neill was “the highest ranking non-civilian . . . uniformed police officer” and “in charge of all NYPD operations answering only to the Police Commissioner and the Mayor.” (See id. ¶ 62.) Proposed Defendant Inspector

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McCormack was the commanding officer of the NYPD’s 40th Precinct from September 27, 2011, to May 2014, at which point the Plaintiffs allege “he was transferred out of the precinct” following media reports “that he was recorded pressuring a police officer to target young [B]lack males.” (Id. ¶ 63.) Proposed Defendant Inspector Tsachas was the commanding officer of Transit District 32 from June 2015 to June 2016. (Id. ¶ 64.) Proposed Defendant Tucker is the First Deputy Police Commissioner of the NYPD, and he allegedly “set policy, directed personnel, approved penalties and made recommendations as to all penalties regarding all disciplinary matters within the NYPD,” and chaired Steering Committee meetings where “penalties are discussed and recommendations made” regarding disciplinary actions against Black and Latino NYPD officers. (Id. ¶ 65.) Proposed Defendant Tucker also chairs the Special Monitoring Committee, a body within the NYPD that determines whether to place NYPD officers in a Performance Monitoring Program (the “PMP”). (Id.) Proposed Defendant Kevin S. Richardson is a Deputy Commissioner of the NYPD as well as the Commanding Officer of the NYPD’s Advocate’s office, and he allegedly “routinely met with other defendants to set policy, approve penalties, and make recommendations regarding disciplinary matters,” and participates in Steering Committee meetings and the Special Monitoring Committee. (Id. ¶ 66.)
The Proposed SAC generally alleges that the Proposed Individual Defendants knew or should have known of the customs, practices, and policies described in the Proposed SAC, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the Plaintiffs, and “condoned, ratified and/or authorized” such practices, policies, and conduct. (See id. at ¶¶ 60-66.)

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Plaintiffs proffer the following statistical allegations in support of their employment discrimination claims. According to Plaintiffs, as of June 2014, the NYPD had 35,000 members, of whom 51% were White, 26% were Latino, and 16% were Black. (Id. ¶ 245.) Plaintiffs allege that “the vast majority of the NYPD command structure[] are [W]hite males[,]” as 80% of captains and 82% “of the appointed ranks above the rank of Deputy Inspector” are White. (Id.) Plaintiffs also allege that, as of November 2014, Black and Latino police officers comprised 43% of the NYPD’s uniform workforce, but held only 17% of appointed positions above the rank of Deputy Inspector. (Id. ¶ 246.)
Plaintiffs allege that “the performance evaluation system to which the [P]laintiffs are subjected by the [Proposed D]efendants is unfair” because, despite being “neutral on its face, . . . minority officers are more likely to be charged, investigated and receive more punishment, than their [W]hite counterparts for the same alleged offenses.” (Id. ¶ 26.) In support of that fact, Plaintiffs allege, on information and belief, that unspecified statistics from the Case Analysis and Tracking System (“CATS”) for a three-year period spanning 2013 to 2016 “show a substantial disparity between the treatment of [B]lack and [L]atino police officers as opposed to their [W]hite counterparts,” and that, over that period, such officers “[we]re more frequently written up for minor disciplinary infractions,” for which the imposed penalties “[we]re more severe.” (Id. ¶¶ 39, 241.)
Police officers’ annual performance ratings, which range between 1.0 and 5.0, play an integral role in promotions and other employment actions, as a high annual performance rating of 4.0 or above is one of the requisite criteria for promotion to the next rank, while a “negative annual evaluation rating,” or a score below 3.0, makes the officer “a candidate for placement into the probationary [PMP]”. (See id. ¶¶ 27, 29.) Plaintiffs allege that “[]though

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Black and Latino Police Officers constitute only 42% of the NYPD uniformed workforce, they make up 70% of all officers in the [PMP] as of December 31, 2016.” (Id. ¶ 235.) The PMP comprises three different levels of performance monitoring, each of which has different consequences for the terms of an officer’s employment. (See id. ¶ 31.)
Plaintiffs allege on information and belief that, from 2013 through 2015, Black and Latino officers were 50% and 70%, respectively, more likely than White officers to “receive formal charges and specifications,” according to CATS data. (Id. ¶ 247.) Plaintiffs further allege on the same basis that Black and Latino officers were “substantially more likely to have been found guilty on departmental charges than [W]hite officers,” that such officers, once found guilty, were more likely than White officers to be terminated or placed on probation, and that “in general, disparities in the treatment of Latino and Black officers as compared to [W]hite officers at each stage of the disciplinary process support the inference that race and ethnicity were motivating factors in the decisions.” (Id.) Plaintiffs also allege that Blacks and Latinos are 25% overrepresented in “consultations,” which are investigations to see if command discipline charges should be brought against an officer, and that such consultations involving Black and Latino officers are 25% more likely to result in charges than consultations involving White officers. (Id. ¶ 248.) Plaintiffs also allege that Black and Latino officers are 4% less likely to be offered a plea than White officers, and that dispositions of charges involving minority officers are harsher: Black and Latino officers are 40% more likely to receive a “guilty at trial” disposition and 84% more likely to receive a “charges filed” disposition, compared to White officers, and that Black and Latino officers are 659% more likely to be terminated, compared to White officers. (Id.)

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All Plaintiffs allege that they “suffered negative employment consequences as a result of the failure to meet the illegal quotas” and that they were “racially discriminated against . . . with respect to performance evaluations, the [PMP], and the administration of discipline and punishment.” (Id. ¶¶ 46-57.) They also allege that each “has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community.” (Id.) The Proposed SAC also proffers factual allegations specific to each named Plaintiff’s NYPD experience, the details of which are discussed infra in connection with the question of the sufficiency of each Plaintiff’s claims of discriminatory treatment, retaliation for complaints of discrimination, hostile work environment, and retaliation for engaging in activity protected by the First Amendment.
II. DISCUSSION Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend should be freely granted when justice so requires. Fed. R. Civ. P. 15(a). While granting or denying such leave is within the discretion of the district court, Reisner v. General Motors Corp., 511 F. Supp. 1167, 1171 (S.D.N.Y. 1981), leave to amend will generally be granted unless: (1) there is evidence of undue delay, bad faith, dilatory motive, or repeated failures to cure deficiencies by amendments previously allowed; (2) allowing amendment would cause undue prejudice to the opposing party; or (3) the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Defendants oppose Plaintiffs’ motion, arguing that the proposed amendment would be futile. A proposed amendment to a pleading would be futile if it could not withstand a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Ballard v. Parkstone Energy, LLC, No. 06 CV 13099, 2008 WL 4298572, at *3 (S.D.N.Y. Sept. 19, 2008).

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Thus, “[l]eave to amend may be denied on grounds of futility if the proposed amendment fails to state a legally cognizable claim or fails to raise triable issues of fact.” AEP Energy Servs. Gas Holding Co. v. Bank of America, N.A., 626 F.3d 699, 726 (2d Cir. 2010) (citation omitted).
When considering a Rule 12(b)(6) motion, the Court accepts as true all nonconclusory factual allegations in the complaint and draws all reasonable inferences in the Plaintiff’s favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007). To survive such a motion, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court is not, however, required to accept “conclusory statements” made by the plaintiff as true, nor do “legal conclusion[s] couched as [] factual allegation[s]” merit such deference. Twombly, 550 U.S. at 555.
A. Racial Discrimination Claims, asserted pursuant to 42 U.S.C. §§ 1981 and 1983, the NYSHRL, and the NYCHRL (Second, Fourth, and Fifth Causes of Action) In the Proposed SAC’s Second, Fourth, and Fifth Causes of Action, Plaintiffs
assert that the Proposed Defendants are liable for inflicting or approving racially discriminatory employment practices that violate 42 U.S.C. §§ 1981, 1983, the NYSHRL, and NYCHRL. (Proposed SAC ¶¶ 222-72.) The Proposed Defendants oppose Plaintiffs’ request for leave to file these claims, arguing that neither Plaintiffs’ statistical evidence nor their individualized allegations, alone or in combination, are sufficient to support an inference of intentional discriminatory or retaliatory conduct, that insufficient facts are plead to support the requisite inference of personal involvement on the part of the Proposed Individual Defendants, and that

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certain claims are time barred. (See Defendants’ Opposition to Plaintiffs’ Motion to File a Second Amended Complaint (“Opp. Br.”), Docket Entry No. 72, at 2-18.)
1. Federal Claims Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction
of the United States shall have the same right in every State and Territory to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . .” 42 U.S.C.S. § 1981(a) (LexisNexis 2009). “[T]he term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.S. § 1981(b) (LexisNexis 2009). Section 1981’s protections apply to employment relationships. See Patterson v. Cty. of Oneida, 375 F.3d 206, 224-25 (2d Cir. 2004). However, “[w]hen the defendant is a state actor, Section 1983 is the exclusive remedy for violations of rights guaranteed under Section 1981 . . . [t]hus, claims against . . . [i]ndividual [d]efendants in their official capacity or against the City, must be brought under Section 1983.” Bermudez v. City of New York, 783 F. Supp. 2d 560, 576 (S.D.N.Y. 2011) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)) (additional citations omitted).4 Accordingly, Plaintiffs’ Second Cause of Action is construed as a claim brought pursuant to Section 1983 to enforce the provisions of Section 1981.
“To establish a claim under [Section] 1981, [] plaintiff[s] must allege facts in support of the following elements: (1) the plaintiff[s] [are] member[s] of a racial minority; (2) an

4

Section 1983 authorizes civil actions against individual state actors for relief from a

“deprivation of any rights, privileges, or immunities secured by the Constitution.” 42

U.S.C.S. § 1983 (LexisNexis 2013). Municipal entities may be held liable under Section

1983 where violations are the product of municipal policies or customs. Littlejohn v.

City of New York, 795 F.3d 297, 314 (2d Cir. 2015) (quoting Patterson, 375 F.3d at 226)

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intent to discriminate on the basis of race by the defendant[s]; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (citations omitted). “Although ‘an employment discrimination plaintiff need not plead a prima facie case of discrimination’ in order to survive a motion to dismiss,” a plaintiff “must allege sufficient facts showing that she is entitled to relief.” Bermudez, 783 F. Supp. 2d at 575 (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002)).
“To state a discrimination claim under the Fourteenth Amendment Equal Protection Clause [of the Constitution of the United States] and/or § 1981, [P]laintiffs must sufficiently allege that [the Proposed D]efendants acted with discriminatory intent.” Burgis v. N.Y.C. Dep’t of Sanitation, 798 F.3d 63, 68 (2d Cir. 2015) (citing Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982)). “Purposeful discrimination requires more than intent as volition or intent as awareness of consequences; it involves a decisionmaker’s undertaking a course of action because of, not merely in spite of, the action’s adverse effects upon an identifiable group.” Iqbal, 556 U.S. at 663 (internal quotation marks, brackets, and citation omitted). To withstand “a motion to dismiss, the plaintiff[s] must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.” Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994) (citation omitted); see also Andrews v. Fremantlemedia, N.A., Inc., 613 Fed. App’x 67, 69 (2d Cir. 2015).

(citing Jett, 491 U.S. at 733–36 (§ 1981) and citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692–94 (1978) (§ 1983)).

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Plaintiffs allege that “[t]he NYPD’s disciplinary system intentionally discriminates against Black and Latino police officers, and in favor of [W]hite police officers,” through “three main interwoven ways[:] by racially unfair use of minor violations, command disciplines, and charges and specifications[;] by racially unfair use of annual and interim performance evaluations[;] and by racially disparate placement in the [PMP.]” (Proposed SAC ¶ 222.) Because a showing of intentional discrimination is fundamental to the statement of a racial or ethnic origin discrimination claim under Sections 1981 and 1983, the Court assumes that Plaintiffs use the term “unfair” in the Proposed SAC as a synonym for intentional discrimination.
a. Statistical Evidence of Discriminatory Conduct “[T]o show discriminatory intent in a [Section] 1981 or Equal Protection case
based on statistics alone, the statistics must not only be statistically significant in the mathematical sense, but they must also be of a level that makes other plausible nondiscriminatory explanations very unlikely.” Burgis, 798 F.3d at 69 (citation omitted). Thus, in Burgis, where the Plaintiffs alleged widespread race- and/or national origin-based discrimination in New York City Sanitation Department promotional decisions, the Second Circuit upheld the dismissal of the complaint because the plaintiffs’ statistics lacked specificity, as they “show[ed] only the raw percentages of White, Black, and Hispanic individuals at each employment level, without providing any detail as to the number of individuals at each level, the qualifications of individuals in the applicant pool and of those hired for each position, or the number of openings at each level.” See id.
Here, the named Plaintiffs acknowledge that they did not make the alleged quotas and allege that they were disciplined more harshly, or subjected to more lenient quotas, than White NYPD officers. The statistics that they proffer do not, however, provide any basis for

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evaluation of the circumstances or charges on which disciplinary decisions were based. They merely break down generic categories of discipline and consequences on racial lines, and in a similar fashion present such disparities in the proportion of officers of each group who are in the NYPD’s workforce as a whole, and in its leadership, and do not constitute a factual proffer sufficient to push Plaintiffs’ claim over the line from possible to plausible. Cf. Iqbal, 556 U.S. at 678 (“[t]he plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully”). The allegations going to similarity of underlying offenses are plead in a conclusory fashion, on information and belief, with only a generalized reference to CATS statistics that are not presented in the Proposed SAC. Such conclusory allegations and statistics are insufficient to support plausibly the key intentional conduct element of Plaintiffs’ federal discriminatory treatment claim. See Iqbal, 556 U.S. at 662 (quoting Twombly, 550 U.S. at 555) (“Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [a court is] ‘not bound to accept as true a legal conclusion couched as a factual allegation’”). The Court notes further that the alleged experiences of the named Plaintiffs, who do not appear to have been brought up on formal charges or found guilty and subjected to termination or other harsh sanctions, are not supportive of a statistical inference that Black and Latino officers are deliberately targeted for the harshest charges and discipline. Cf. Burgis, 798 F.3d at 70 (concluding that “the fact that each of the plaintiffs ha[d] been promoted at some point to the position of supervisor undermine[d] their allegations of discrimination in the promotion of sanitation workers to supervisors”).
Plaintiffs have “fail[ed] to allege statistics” that are “not only . . . statistically significant in the mathematical sense” but are “also . . . of a level that makes other plausible nondiscriminatory explanations very unlikely.” See id. at 69. Their figures lack specificity, “show

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only the raw percentages of [minority and White] individuals” in the PMP and otherwise encountering the disciplinary system, and do not “provide any detail as to the” ways in which the minority officers were comparable to the White officers, such as whether the minority and White officers in the PMP or facing formal charges and specifications have similar roles, qualifications, or personnel records. See Burgis, 798 F.3d at 69-70. Without such facts, the statistics as alleged do not “make other plausible non-discriminatory explanations” for disparities between minority and White NYPD officers very unlikely. See id. Plaintiffs’ statistical proffers are thus insufficient to support the inference of systemic intentional racial or ethnic discrimination in charging Black and Latino NYPD officers with discipline that is a key foundation stone of Plaintiffs’ class-wide disparate treatment and hostile work environment claims. For substantially the same reasons, they are insufficient to allege plausibly that any discipline or hostile work environment imposed on Black and Latino officers was the product of intentional discrimination carried out pursuant to official policies of the City.
b. Allegations of Discrimination Against Plaintiffs The Court now turns to the particularized evidence proffered in the Proposed SAC
regarding the experiences of the named Plaintiffs. Individual Plaintiffs’ Discrimination Claims i. Raymond Raymond alleges that he was warned repeatedly about his enforcement activity
numbers, and that he was at risk of being placed in the PMP and losing the opportunity to get promoted. (See Proposed SAC ¶¶ 68-69, 72, 78, 80.) He also alleges that he was given negative or subpar performance ratings, disciplinary notices and punishments, and lost an endorsement for promotion; Raymond characterizes these incidents as “acts of intentional racial discrimination”

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committed by the Proposed Defendants, including Proposed Individual Defendant Tsachas. (See id. ¶¶ 81, 85, 89, 94.) He alleges that Tsachas “punished minority officers more severely and more often than the [W]hite officers in his command for failure to meet the quota and any other disciplinary issue,” specifically alleging that Raymond was disciplined for the untimely submission of a vacation request while two White officers were not disciplined for the same offense, and that he was disciplined for failure to meet the enforcement activity quota while a White officer with the same or a lower level of quota compliance was not punished in any way. (Id. ¶¶ 64, 88, 90.). Raymond also pleads that, on December 10, 2015, his promotion to Sergeant was canceled by a deputy commissioner who then endorsed the promotion of a White police officer, following a Review Board session that was called “to discuss Raymond’s lack of enforcement activity and anticipated promotion to Sergeant.” (Id. ¶¶ 93-94.) Plaintiffs characterize the cancellation of the promotion as an “act of intentional racial discrimination,” asserting that the promoted White officer was “comparable to Raymond in that he was also called before the [R]eview [B]oard.” (See id. ¶ 94.) Raymond, however, fails to plead facts to support the inference that he was indeed “comparable” to the promoted White officer in relevant respects, such as whether the two officers had similar backgrounds, experiences, law enforcement activity statistics or performance ratings. Appearing before the Review Board on the same day does not by itself support an inference that Raymond and the White officer were “comparable.”
Raymond’s allegations as to discipline for the denied vacation request and failure to discipline a White officer for failing to meet quotas at the same or a higher level of noncompliance are, however, just sufficient to frame claims for intentional discriminatory treatment. Plaintiff has identified alleged comparators and specified the conduct on which the alleged

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disparate treatment was based. While his allegations as to comparable status are relatively conclusory, the proffer of information as to similar relevant violations and consequences (or lack thereof) and the names of the White officers is sufficient in the context of the Proposed SAC to state disparate treatment causes of action against Proposed Individual Defendant Tsachas with respect to punishment for the late leave request and for failure to meet enforcement activity quotas. Raymond has failed, however, to allege the involvement of any of the other Proposed Individual Defendants in these measures and to show that any such measures were imposed pursuant to official policies of the City, so he will only be permitted to amend the complaint to assert these claims as against Proposed Individual Defendant Tsachas.
Plaintiffs thus fail to plead that the Proposed Defendants as a group acted with discriminatory intent as to Raymond. Plaintiffs will, however, be permitted to plead Raymond’s individual discrimination claims against Tsachas based on the discipline for the late vacation request and discipline for failure to meet enforcement quotas.
ii. Gonzalez and Baez Gonzalez’ and Baez’ claims of racially discriminatory actions taken against each of them are similar. Gonzalez claims that he was repeatedly chastised and punished for failing to meet enforcement activity standards, and that it was “racially discriminatory” for Gonzalez to receive a negative performance rating when “[W]hite police officers in the same command, unit, squad, and shift as [Gonzalez], with equal or lower enforcement activity numbers, received annual performance evaluation ratings” higher than his own negative rating. (See Proposed SAC ¶ 108.) Gonzalez alleges that the enforcement metrics were brought up in discussions of his performance rating and names White officers who were allegedly in the same command and shift who had at least equally low metrics and were not given ratings as low as Gonzalez’. (Id. ¶¶

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108-09.) He alleges that the rating was imposed by a Lt. Hatki and upheld by Proposed Individual Defendant McCormack. (Id. ¶ 109.)
Plaintiffs allege generally that in the 40th Precinct, to which both Gonzalez and Baez were assigned, all officers were subject to the same enforcement activity standards but that White officers did not receive the same punishments as Black and Latino officers. (Id. ¶ 133.) They allege that it was “racially discriminatory” for Baez to receive a negative performance rating in 2013 from Proposed Individual Defendant McCormack, “because in that year, [his] actual performance as a police officer merited a score of at least 4.0,” because Baez performed “excellent police work” in 2013. (See id. ¶¶ 135, 137.) While Baez’s subjective self-evaluation of the quality of his police work is insufficient to raise an inference of discrimination, he also alleges that “comparatively placed [W]hite police officers in the same unit, with similar activity numbers for the same period[] . . . did not get the same punishment,” and received higher annual performance evaluation scores. (Id. ¶ 136.) On March 31, 2014, Baez was placed in the PMP for a negative performance rating by Proposed Individual Defendant McCormack, which Plaintiffs assert was “racially discriminatory” because McCormack specifically told Baez that his negative rating was based on writing an insufficient number of Criminal Court summonses, and because named White police officers “whose performance was at the same level or worse than Baez were not placed” in the PMP. (Id. ¶¶ 139-41.)
Plaintiffs have proffered sufficient facts to state claims against Proposed Individual Defendant McCormack for discriminatory treatment as to low performance ratings and PMP designations based on failure to meet enforcement performance metrics. They have not, however, alleged facts showing that any of the other Proposed Individual Defendants were personally involved or that McCormack’s conduct was undertaken pursuant to a City policy.

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Baez’ and Gonzalez’ rating and PMP claims can therefore be pursued only as against McCormack in his individual capacity.
iii. Serrano Serrano also fails to plead facts sufficient to support a general inference of discriminatory intent. He claims that he “experienced first[]hand the negative effect of the quotas imposed by his supervisors on the minority community [that] he patrolled in the South Bronx,” when he “received a negative performance evaluation” due to “his failure to meet the quota” imposed by his supervisors. (See id. ¶¶ 148-49.) He alleges that he told a supervisor that the precinct’s residents “are predominantly low[-]income and that he did not feel right” giving them summonses, and that his supervisor allegedly, on an unspecified date, “referred to the residents as ‘animals,’” and Serrano “was deeply offended.” (See id.) To “determin[e] whether a comment evidences an intent to discriminate or whether it is a non-probative ‘stray remark,’ courts consider four factors: (1) who made the remark (i.e.[,] a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark; and (4) the context in which the remark was made (i.e.[,] whether it was related to the decision-making process).” LaSalle v. City of N.Y., No. 13-CV-5109-PAC, 2015 WL 1442376, at *5 (S.D.N.Y. Mar. 30, 2015) (internal quotation marks, ellipses, and citation omitted). Serrano’s allegation that his supervisor referred to residents of the 40th Precinct as “animals” constitutes such a “stray remark,” and does not support an inference of discriminatory intent. (See Proposed SAC ¶¶ 14849.) Plaintiffs allege that the remark was made in response to Serrano’s expressing discomfort with giving low-income residents “spurious summons [sic].” (See id.) The comment was not made in relation to “the [employment] decision-making process” or the decision to give him a

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negative performance evaluation, nor does its content suggest race or ethnicity-based animus against Serrano. See LaSalle, 2015 WL 1442376, at *5. Plaintiffs’ allegation thus constitutes “a non-probative ‘stray remark.’” See id.
Serrano also alleges that “[i]t was unfair and racially discriminatory” for his supervisor to give him a 3.0 performance evaluation score for 2012, because certain of his metrics were comparable to his performance in earlier years and he received higher grades in those years, and that a basis for an inference of intent is present because “three [W]hite police officers who had the same as, similar to, or worse enforcement activity numbers” received higher evaluation scores. (Proposed SAC ¶¶ 159-60.) Although Plaintiffs do not plead how Serrano’s enforcement metrics in 2012 and earlier years correlated to relevant benchmarks, Plaintiffs proffer that, when Serrano appealed the rating, Proposed Individual Defendant McCormack specifically stated that Serrano “did not stop enough black people.” (Id. ¶ 161.) These facts, taken together and in the light most favorable to Serrano, are sufficient to support an inference of intentional discriminatory conduct by Proposed Individual Defendant McCormack in connection with the negative performance rating.
Plaintiffs’ motion is therefore granted to the extent that they may plead a discriminatory treatment claim against Proposed Individual Defendant McCormack based on the negative 2012 performance rating given to Serrano.
iv. Abdullah Abdullah alleges that “[i]t was an act of racial discrimination” that he was kept in the PMP for 2012-14, “despite . . . consistent[] good performances” and his passing-grade annual performance evaluation ratings from 2012-14, “because typically a passing grade of 3.0 or above[] on an annual performance evaluation is enough to secure a police officer[’]s removal

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from the [PMP] if the officer was placed on the program for negative performance, as Abdullah was” and because “comparable [W]hite police officers who were placed on the program for similar reasons” to Abdullah were removed “after just one year of good performance.” (See id. ¶¶ 192-94.)
Abdullah’s conclusory allegations do not support an inference of discriminatory intent. The Proposed SAC alleges that he did not comply with quota requirements in a prior posting from at least 2007, and was put on performance monitoring for that reason from 2009. There is no allegation of compliance with metrics until 2012. (See id. ¶¶ 189-91.) He does not allege how the White police officers were “comparable” to him, such as whether they were originally placed in the PMP for similar reasons as he was, how long it took them to meet standards or how their performance measured up in the year they were removed from the PMP compared to Abdullah’s.
Plaintiffs thus fail to allege facts sufficient to support the requisite inference of intentional discrimination as to Abdullah, and their request for leave to amend is denied as to Plaintiff Abdullah.
v. Olagoke Olagoke is “a minority [B]lack officer in a mostly [W]hite squad” and alleges that he was “disproportionately punished for not meeting the [imposed] quota while [W]hite police officers, who also failed to meet the quota, received less or no punishment.” (Id. ¶ 195.) Although he alleges that he has long opposed the alleged quota requirement because he believes it is unfair, the only specific quota-related “problems with the [D]efendants” that he identifies in his complaint are attributed to his failure to meet the quotas in June 2011 when he deliberately refrained from making arrests in order to let his partner, who was getting married, write all of the

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arrests and summonses for that month. (Id. ¶¶ 198-99.) His supervisor did not accept the explanation and transferred Olagoke to another assignment in which he did not have opportunities to make arrests, ensuring that his numbers would stay low. (Id. ¶¶ 200-01.) On the basis of the poor numbers for June and July of 2011, he was taken off paid details, which reduced his income significantly. (Id. ¶¶ 201-03.) He further alleges that his 2012 annual performance evaluation score of 3.0, rendered in January 2013, “was racially discriminatory because based on his performance, Olagoke deserved a score of at least[] 4.0[] but received a lower score from his supervisors because he is [B]lack,” and that White officers in his squad, “who [had] lower enforcement activity numbers than Olagoke and who generally did not do as much work as [he did]” received higher performance ratings “and were never kicked off paid detail,” as Olagoke alleges he was. (Id. ¶¶ 205-07.)
Plaintiffs’ conclusory pleading that Olagoke received a lower performance score than he deserved “because he is [B]lack,” in the context of factual allegations indicating that he had been punished for choosing to forgo arrests in order to benefit his partner, is insufficient to support an inference of discriminatory intent. Although he pleads that his White colleagues faced different employment actions, the alleged disparity is insufficient to support the inference because he does not proffer facts showing that they were similarly situated in ways other than their raw enforcement numbers, such as their reasons for noncompliance. The assertion that he is Black and they are White “is simply insufficient as a factual pleading to allege racially motivated discrimination for purposes of a plausible section 1981 claim.” See, e.g., Johnson v. City of New York, 669 F. Supp. 2d 444, 450 (S.D.N.Y. 2009).

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Plaintiffs thus fail to allege facts sufficient to support an inference of intentional discriminatory conduct, and their motion will be denied with respect to Plaintiff Olagoke.
vi. Goris, Diaz, Waller, Whitely, and Pierre The Proposed SAC expressly attributes allegedly discriminatory punishment of these Plaintiffs to their failure or refusal to comply with the alleged quota requirements. Because Plaintiffs have not plausibly framed their claim that the quotas and enforcement thereof are intentionally discriminatory against Black and Latino officers, these Plaintiffs fail to state viable claims for discriminatory treatment. vii. Conclusion – Federal Discriminatory Treatment Claims For the foregoing reasons, Plaintiffs’ motion for leave to file a Second Amended Complaint asserting federal discriminatory treatment claims is denied, except as to the following proposed claims: Raymond’s claims relating to his punishment for submitting a late vacation request and for failing to meet quotas, as against Proposed Individual Defendant Tsachas only; Gonzalez’ and Baez’ claims relating to negative performance evaluations and placement on PMP, as against Proposed Individual Defendant McCormack only; and Serrano’s claim relating to his negative 2012 performance rating, as against Proposed Individual Defendant McCormack only. c. Hostile Work Environment Claim Plaintiffs allege that “the imposition of illegal quotas has led to a practice and pattern of discrimination against officers of Hispanic and African-American heritage on the basis of color, race, and national origin by . . . maintaining and allowing a hostile work environment,” experienced by Plaintiffs and the prospective class members. (See Proposed SAC ¶¶ 19, 22, 24.). The Court treats this claim as one brought pursuant to Section 1983 of Title 42 to enforce

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Section 1981 of that Title. The Proposed Defendants assert that the hostile work environment claim should be dismissed because only four of the Plaintiffs complain of a hostile work environment and none of them pleads allegations sufficient to satisfy the necessary elements of a hostile work environment or allege plausibly that the City has a policy or practice of maintaining such a hostile work environment. (Opp. Br., at 12-13.)
“To establish a hostile work environment under [Section] 1981, or [Section] 1983, a plaintiff must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment[,] and “[t]he incidents complained of must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Littlejohn, 795 F.3d at 320-21 (quotation marks and citations omitted). To “determin[e] whether [] plaintiff[s] suffered a hostile work environment,” a court “consider[s] the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 321 (quotation marks and citation omitted).
Plaintiffs’ hostile work environment claims fail for the principal reason that, as explained above in connection with their discriminatory treatment claims, they have not plead plausibly that punishment for failure to meet the alleged quotas is motivated by racial or ethnic animus toward officers. Furthermore, once the quota-based consequences are eliminated from the analysis, it is clear that Plaintiffs have not alleged facts demonstrating severe or pervasive discriminatory conduct.

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For these reasons, the Proposed SAC fails to state any hostile work environment claim.
d. Retaliation for Discrimination Complaints Plaintiffs allege that Gonzalez was placed in the PMP in retaliation for filing
complaints with the NYPD’s Internal Affairs Bureau (the “IAB”) and the Equal Employment Opportunity Commission (the “EEOC”) that, among other things, detailed “racial discrimination against minorities by virtue of a hostile work environment” and “intensified retaliation that he was experiencing,” and that Serrano experienced “a series of retaliatory action[s]” following his filing of a complaint with the EEOC, which was referred to the NYPD’s Office of Equal Employment Opportunity (the “OEEO”). (See Proposed SAC ¶¶ 110-15, 120-30, 153-58.) Defendants assert that Plaintiffs fail to state a claim upon which relief can be granted, arguing that retaliation covered by Title VII is not actionable under Sections 1981 and 1983, Plaintiffs fail to assert the requisite causation, and that the complaints were not made in sufficient temporal proximity to the alleged retaliatory actions. (See Opp. Br. at 13-15.) Plaintiffs assert that Gonzalez and Serrano’s retaliation claims are brought pursuant to the Equal Protection Clause and the Due Process Clause, rather than pursuant to Title VII. (See Reply Memorandum of Law in Support of Plaintiff[s’] Motion for Leave to File a Second Amended Complaint (“Pl. Reply Br.”), Docket Entry No. 73, at 8-10.)
Defendant’s Title VII preclusion argument fails because “retaliation claims alleging an adverse action because of a complaint of discrimination are actionable under § 1983.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 80 (2d Cir. 2015). “[F]or a retaliation claim under § 1983 to survive a . . . motion to dismiss, [a] plaintiff must plausibly allege that: (1) defendants acted under the color of state law, (2) defendants took [an] adverse

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employment action against him, (3) because he complained of or otherwise opposed discrimination.” Id. at 91. As “the elements of a retaliation claim based on an equal protection violation under § 1983 mirror those under Title VII[,]” an “adverse employment action [in a retaliation claim based on the Equal Protection Clause] is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination[,] . . . [and] covers a broader range of conduct than does the adverse-action standard for claims of discrimination under Title VII.” Id. at 90-91 (quotation marks and citation omitted). “Unlike Title VII discrimination claims, however, for an adverse retaliatory action to be ‘because’ a plaintiff made a charge, the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action[,]” or “that the adverse action would not have occurred in the absence of the retaliatory motive.” Id. at 90 (quotation marks and citations omitted).
“A retaliatory purpose can be shown indirectly by timing: protected activity followed closely in time by adverse employment action.” Id. (citation omitted). Though “the Second Circuit Court of Appeals has declined to draw ‘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,’” courts in this Circuit have inferred a causal relationship when three or fewer months have elapsed. See Lewis v. Roosevelt Island Operating Corp., 246 F. Supp. 3d 979, 991 (S.D.N.Y. 2017) (quoting Littlejohn, 795 F.4d at 319); see also Day v. City of New York, 2015 WL 10530081, at *13 (S.D.N.Y. Nov. 30, 2015) (citing Vega, 801 F.3d at 92) (“[T]he Second Circuit has held that an adverse action that occurs within two months or less of a protected activity . . . is sufficient to survive a motion to dismiss on the issue of causation.”). Courts in the Second Circuit “have found a causal connection where there were even longer gaps [between the protected activity and

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the adverse employment action] but it was plausible that there was no earlier opportunity to retaliate.” EEOC v. Day & Zimmerman NPS, Inc., No. 15-CV-01416-VAB, 2016 WL 1449543, at *4 (D. Conn. Apr. 12, 2016) (internal quotation marks and citation omitted) (finding that the EEOC plausibly alleged retaliatory conduct under the Vega framework in a disability discrimination suit). The Court now turns to the retaliation allegations in the Proposed SAC.
i. Gonzalez Gonzalez alleges that he made two principal complaints about alleged discrimination: written complaints to the IAB and the EEOC on February 6, 2014, detailing alleged violations by Proposed Individual Defendant McCormack and other supervisors in the 40th Precinct, including racial discrimination against minorities by virtue of a hostile work environment,” and a September 7, 2015, complaint to the IAB and the OEEO “complaining about the intensified retaliation that he was experiencing.” (Proposed SAC ¶¶ 110, 127.) Gonzalez alleges that the Proposed Defendants, including Proposed Individual Defendant McCormack, subsequently took numerous adverse employment actions against him, including placing him in the PMP in April 2014, denying an application for a transfer in December 2014, decreasing Gonzalez’s assignments in July 2015, issuing him a minor violation and command disciplines (“CDs”) in August 2015, denying a line of duty designation for a cardiac injury in August 2015, issuing a CD for allegedly recording a sergeant in October 2015 and finding him guilty of recording that sergeant in November 2015, and issuing him two minor violations in November 2015. (See id. ¶¶ 114-30.) Gonzalez sufficiently pleads that the Proposed Defendants were acting under the color of state law in taking these actions, and these allegations meet the pleading standard for retaliatory “adverse employment action” under Section 1983. See Vega, 801 F.3d at 91.

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Gonzalez, however, fails to plead facts plausibly supporting an inference that these actions were taken “because he complained of or otherwise opposed discrimination,” i.e., that these actions “would not have occurred in the absence of the retaliatory motive.” See id. (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 361-63 (2013), which held that the common law but-for causation standard applies to claims, such as ones for retaliation, that are not covered by the statutory mixed-motive standard added to Title VII by the Civil Rights Act of 1991).
Gonzalez alleges that he was told at various points after June 2013 that he “needed to bring up his enforcement numbers;” advised on December 30, 2013, that he “was underperforming for the entire year of 2013;” had been punished on January 5, 2014, “for his low enforcement activity numbers;” and informed in January 2014 that his annual performance evaluation rating for 2013 was 2.5, a “negative evaluation rating [that] put [him] at the risk of being placed” in the PMP. (See Proposed SAC ¶¶ 99, 101-02, 107.) Gonzalez was clearly on notice of ongoing performance-related issues before he filed his first complaints in February 2014. Though his placement in the PMP in April 2014 “followed closely in time” the February 2014 complaint filings, Gonzalez was warned during his performance review in January 2014, before the February 2014 filings, that he was at risk of PMP placement, and thus Gonzalez has failed to “plausibly allege that the retaliation was a ‘but-for’ cause of” his placement in the PMP. See Vega, 801 F.3d at 90-91. The subsequent alleged incidents of retaliation occurred beginning in December 2014 (see Proposed SAC ¶¶ 115-26), over ten months after the filing of the complaints, a length of time which “does not allow for an inference of causation.” See Johnson v. NYS Office of Alcoholism & Substance Abuse Servs., 16-cv-09769-RJS, 2018 U.S. Dist. LEXIS 41986, at *13 (S.D.N.Y. March 13, 2018) (concluding that a period of “more than nine months” between the lodging of complaints and the commencement of adverse employment

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actions is “a temporal gap that is too remote, by itself, to raise an inference of but-for causation”).
Gonzalez alleges that he “complain[ed] about the intensified retaliation that he was experiencing” on September 7, 2015, to the IAB and OEEO, that he was issued a CD on October 10, 2015, “for allegedly recording” a sergeant on August 22, 2015, and that he was found guilty of doing so on November 25, 2015, after not being provided the opportunity to defend himself, nor an “adjudication or investigation.” (Proposed SAC ¶¶ 122, 127-29.) He also alleges that he was “unfairly issued” two minor violations for having a cap device that did not match his shield and for having a defective holster. (Id. ¶ 130.) These allegedly retaliatory incidents occurred within close temporal proximity to Gonzalez’s September 7, 2015, filing of a complaint, which constitutes protected activity. Plaintiffs have sufficiently plead facts in support of an inference of a “retaliatory purpose,” as the allegedly retaliatory incidents “followed closely in time” these adverse employment actions. See Vega, 801 F.3d at 90-91.
Plaintiffs’ motion is therefore granted to the extent they may plead that Gonzalez experienced retaliation for filing a complaint of racial discrimination and allegedly “intensified retaliation” following his September 7, 2015, complaint to the IAB and OEEO, against Proposed Individual Defendant McCormack only.
ii. Serrano Serrano filed a written complaint with the EEOC, which was then referred to the
OEEO, on June 1, 2012, stating that Proposed Individual Defendant McCormack and a captain were discriminating against him as a Latino by forcing him to work in a racially hostile environment. (Proposed SAC ¶ 153.) Serrano alleges that McCormack and the captain learned of Serrano’s complaints over eight months later, on February 7, 2013, and thereafter

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“commenced a series of retaliatory action[s] against” Serrano, including removing him from his usual patrol assignment and reassigning him to a solitary fixed foot post, where he was inspected by five different supervisors that night, which is allegedly “an indication that the object of the post [was] punishment” and allegedly was “intended to convey a threat to Serrano that he would be under increased scrutiny and would be punished for minor or pretextual infractions;” “sending him outside the precinct on details;” ransacking his locker and pasting stickers of rats, in reference to his complaint, on the locker; and denying him leave despite his alleged requesting of days off in the usual manner; and the receipt of a 3.0 out of 5.0 performance evaluation for the 2012 annual period. (Id. ¶¶ 154-58.)
The Proposed Defendants assert that, although the “protected activity is covered under Title VII,” the allegedly adverse actions were too remote in time from the protected activity and thus Serrano fails to state a retaliation claim upon which relief may be granted. (See Opp. Br. at 14-15.) Plaintiffs argue that Serrano’s claim was not too remote in time because the allegedly adverse employment actions occurred only after McCormack and the captain learned of Serrano’s complaint, which had been filed over eight months earlier. (Pl. Reply Br. at 10.)
Plaintiffs have plausibly alleged facts to support an inference that the changes to Serrano’s assignment, ransacking of his locker, and denial of timely requests to take leave were “adverse actions” taken in retaliation for Serrano’s filing of a complaint with the EEOC and OEEO on June 1, 2012, which was a protected activity. See Vega, 801 F.3d at 90-91. As Plaintiffs plausibly plead that McCormack and the captain only learned of the complaint on February 7, 2013, and began to take retaliatory actions shortly thereafter, it is “plausible that there was no earlier opportunity to retaliate.” See Day & Zimmerman NPS, Inc., 2016 WL 1449543, at *4. Plaintiff has thus plausibly plead that a “retaliatory purpose can be shown

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indirectly by timing” here, as the “protected activity [was] followed closely in time by adverse employment action[s].” See Vega, 801 F.3d at 90.
Plaintiffs’ motion for leave to file a further amended complaint for Section 1983 racial discrimination retaliation is therefore granted as to Serrano’s retaliation claims, against Proposed Individual Defendant McCormack only.
2. State and City Law Claims (Fourth and Fifth Causes of Action and Vicarious Liability Claim) Plaintiffs assert claims under the New York State and New York City Human
Rights laws that parallel their Section 1981 and 1983 racial discrimination claims, and also bring a vicarious liability claim, asserting that “the City of New York is vicariously liable for the acts, omissions and conduct of its employees and agents.” (Proposed SAC ¶¶ 256-72, 290.)
Pursuant to 28 U.S.C. § 1367(a), a district court has “supplemental jurisdiction over . . . claims that are so related to claims in the action within [the Court’s] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C.S. § 1367(a) (LexisNexis 2012). “Although federal courts may exercise jurisdiction over related state-law claims where an independent basis of subject-matter jurisdiction exists . . . such a court may, for various reasons, nonetheless ‘decline to exercise supplemental jurisdiction over a claim[.]’” Oneida Indian Nation v. Madison Cty., 665 F.3d 408, 436-37 (2d Cir. 2011) (quoting 28 U.S.C. § 1367(c)). One reason a court may “decline to exercise supplemental jurisdiction over a claim” is that the state and local “claim[s] substantially predominate[] over the claim or claims over which the district court has original jurisdiction.” 28 U.S.C.S. § 1367(c)(2) (LexisNexis 2012).
As explained above in connection with the Second Cause of Action, Plaintiffs have failed to state viable federal discrimination, hostile work environment and retaliation claims

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except as to (1) Raymond’s federal discrimination claims relating to his punishment for submitting a late vacation request and for failing to meet quotas, as against Proposed Individual Defendant Tsachas only; (2) Gonzalez’ and Baez’ federal discrimination claims relating to negative performance evaluations and placement on PMP, as against Proposed Individual Defendant McCormack only; (3) Serrano’s federal discrimination claim relating to his negative 2012 performance rating, as against Proposed Individual Defendant McCormack only; and (4) Gonzalez’ and Serrano’s discrimination-related retaliation claims, against Proposed Individual Defendant McCormack only. As to all other such claims asserted under both federal and state law, the state law claims are the only ones that remain, and thus substantially predominate. Consideration of the remaining state and local law claims would involve proof and disputes and analysis of facts that are not implicated by the few remaining federal employment law claims.
Plaintiffs’ motion for leave to file a further amended complaint asserting claims for racial discrimination under NYSHRL and the NYCHRL is therefore granted only to the extent such claims parallel the aforementioned surviving federal claims and is denied as to all other NYSHRL and NYCHRL claims without prejudice to litigation of such claims in another forum of competent jurisdiction. See id. The Court declines to exercise supplemental jurisdiction over the remainder of Plaintiffs’ NYSHRL and NYCHRL Claims, including Plaintiffs’ related vicarious liability claims.

B. Individual First Amendment Retaliation Claims by Plaintiffs Raymond, Polanco, Serrano, Waller and Gonzalez (Sixth, Eighth, Tenth, Twelfth, and Fourteenth Causes of Action) 1. Standard Plaintiffs allege that the Proposed Defendants retaliated against Raymond,
Polanco, Serrano, Waller, and Gonzalez for making internal and certain external complaints regarding the allegedly discriminatory quotas and racially discriminatory disciplinary system and

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other alleged police practices, thereby violating these Plaintiffs’ rights under the First Amendment to the United States Constitution and 42 U.S.C. § 1983. (Proposed SAC ¶¶ 273-87.)
“Where, as here,” plaintiffs claim that they were “retaliated against in violation of the First Amendment, [they] must plausibly allege that ‘(1) [their] speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against [them]; and (3) there was a causal connection between this adverse action and the protected speech.’” Montero v. City of Yonkers, N.Y., 890 F.3d 386, 394 (2d Cir. 2018) (quoting Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)).
A public “employee may be protected from retaliation . . . when speaking in the workplace when he or she is speaking ‘as a citizen upon matters of public concern.’” Id. at 395 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (ellipses omitted)). The First Amendment analysis of a public employee’s claim “must proceed in two parts.” Id. First, the Court “‘determin[es] whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.’” Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). “If the first component is present, an employer must then show that it ‘had an adequate justification for treating the employee differently based on his or her speech from any other member of the general public.’” Id. (quoting Garcetti, 547 U.S. at 418) (brackets and citation omitted).
“The Supreme Court [has] stated that ‘when public employees make statements pursuant to their official duties, . . . the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.’” Id. (quoting Garcetti, 547 U.S. at 421). “The ‘critical question . . . is

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whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.’” Id. at 397-98 (quoting Lane v. Franks, 134 S. Ct. 2369, 2379 (2014) and concluding, based on a plaintiff’s pleading, that his remarks at a union meeting “did not fall within his employment responsibilities” as a police officer, and, thus, that “the district court erred in concluding on a motion to dismiss that [the plaintiff] spoke as an employee”). In Montero v. City of Yonkers, the Second Circuit held that, when a plaintiff alleged facts showing that certain “speech was not composed of statements made as a ‘means to fulfill’ or ‘undertaken in the course of performing’ [the plaintiff’s] responsibilities as a police officer,” the plaintiff had plead sufficiently that he “engaged in citizen speech for purposes of the First Amendment.” 890 F.3d at 399 (quoting Weintraub v. Bd. of Educ. of City School Dist. of City of N.Y., 593 F.3d 196, 203 (2d Cir. 2010)).
A “successful plaintiff” must demonstrate not only that he or she spoke as a citizen, but also “that the speech was on a matter of public concern.” Id. (citing Garcetti, 547 U.S. at 418). “Whether speech is on a matter of public concern is a question of law, and ‘is to be answered by the court after examining the content, form, and context of a given statement, as revealed by the whole record.’” Id. (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011)) (quotation marks and citation omitted). “‘To constitute speech on a matter of public concern, an employee’s expression must be fairly considered as relating to any matter of political, social, or other concern to the community.’” Id. (quoting Jackler, 658 F.3d at 236) (internal quotation marks and citation omitted). Speech, however, “that principally focuses on an issue that is personal in nature and generally related to the speaker’s own situation . . . or that is calculated to redress personal grievances—even if touching on a matter of general importance—does not qualify for First Amendment protection.” Id. at 399-400 (quotation marks, citations, and

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brackets omitted). “[A]n individual motivated by a personal grievance[,] however, “can simultaneously speak on a matter affecting the public at large.” Id. (quoting Golodner v. Berliner, 770 F.3d 196, 203 (2d Cir. 2014)). In a nonprecedential decision, the Second Circuit has concluded that speech by a New York City police officer “about the quota system imposed on him [or her] and other officers by direct supervisors . . . addresse[s] a matter of public concern.” Matthews v. City of N.Y., 488 Fed. App’x 532, 533 (2d Cir. 2012) (citing Jackler, 658 F.3d at 236–37).
With respect to the adverse employment action prong of the inquiry, the Second Circuit has held that “[i]n the context of a First Amendment retaliation claim, . . . ‘only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action.’” Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 225 (2d Cir. 2015) (quoting Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004)) (brackets omitted). “In this context, ‘adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.’ . . . This list of retaliatory conduct is certainly not exhaustive, however, and ‘lesser actions may also be considered adverse employment actions.’” Id. at 226 (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)) (brackets omitted).
To satisfy the “causal connection” prong, the allegation “‘ . . . 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.’” Stajic v. City of N.Y., 214 F. Supp. 3d 230, 235 (S.DN.Y. 2016) (quoting Morris, 196 F.3d at 110). “‘Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected

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activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.” Id. (quoting Mandell v. County of Suffolk, 316 F.3d 368, 383 (2d Cir. 2003)). Plaintiffs may sufficiently plead “a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action, . . . and generally, temporal proximity is strong circumstantial evidence of improper intent.” Id. (quotation marks, citations, and brackets omitted). “When a party relies on ‘the mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action, courts uniformly hold that the temporal proximity must be very close.’” Payson v. Bd. of Educ. of Mount Pleasant Cottage Sch., USFD, No. 14-cv-09696-JCM, 2017 WL 4221455, at *13 (S.D.N.Y. Sept. 20, 2017) (quoting Adams v. Ellis, No. 09-cv-01329-PKC, 2012 WL 693568, at *16 (S.D.N.Y. Mar. 2, 2012), aff’d, 536 F. App'x 144 (2d Cir. 2013)) (internal quotation marks, citations, and ellipses omitted). “[T]here is no hard and fast rule for the amount of time that must pass before a causal connection is necessarily broken, . . . but two years is far longer than” the periods held relevant in many cases, and “[i]ndeed, it is the rare case that finds a plausible claim when nearly a year rather than months have gone by.” Birch v. City of N.Y., 184 F. Supp. 3d 21, 32 (E.D.N.Y. 2016) (citation omitted). Courts in this circuit “often finds a limit at two or three months and almost universally disapprove longer time periods.” Adams, 2012 WL 693568, at *16 (citations omitted). Plaintiffs “may not rely on conclusory assertions of retaliatory motive to satisfy the causal link.” Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2003).
There is a three-year statute of limitations for First Amendment claims under 42 U.S.C. § 1983. See Smith v. Campbell, 782 F.3d 93, 99-100 (2d Cir. 2015).
The Court now turns to the Plaintiffs’ individual First Amendment retaliation claims.

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2. Raymond In the Proposed SAC, Raymond alleges that he was “threatened” by Proposed Individual Defendant Inspector Tsachas, who said that he would “sabotage Raymond’s anticipated promotion” for “continu[ing] to denounce the quota and fail[ing] to meet the quota,” and that, over the course of a year, Raymond was passed over for promotion three times. (Proposed SAC ¶¶ 91-92, 95.) Raymond recounts many instances in which he allegedly engaged in speech protected by the First Amendment and was retaliated against by the Proposed Defendants. First, Raymond alleges that, in or around 2008, he “complain[ed] about being asked to arrest people without regard for the circumstances” and “asked his then supervisor… to be allowed to use more discretion.” (Id. ¶ 68.) Raymond alleges that “he was punished” by being posted to an “undesirable” position in the summer of 2010 due to this request, but that the grounds cited for his punishment was low law enforcement activity. (Id.) The Proposed Defendants argue that claims based on alleged retaliatory actions taken against Raymond in 2010 are barred by the pertinent statute of limitations. (Opp. Br. at 18-19.) The instant action was commenced on August 31, 2015. Thus, Defendants are correct, and the claims based on retaliatory actions allegedly taken against Raymond in 2010 are time-barred by the applicable three year statute of limitations. See Smith, 782 F.3d at 99-100. Raymond next alleges that, on July 23, 2014, he wrote a letter to the “Commanding Officer/Team Leader, Collaborative Initiatives ‘Other City Agencies’ ReEngineering 2014 Group, Captain Pu-Folkes, and Transit Bureau Chief, Joseph Fox,” “detail[ing] how the commanding officer of Transit District 32 . . . was putting pressure on supervisors to pressure police officers, including Raymond, to increase their enforcement activity

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by making borderline arrests just to meet an arrest target, rather than focusing on the legitimate goals of reducing crime, and increasing public safety with respect to subway riders.” (Proposed SAC ¶ 75.) Raymond had been selected for that internal focus group in March 2014, and alleges that Pu-Folkes had “inspired” him to put his ideas for re-engineering the NYPD into writing. (Id. ¶ 74.)
Raymond does not allege that Defendants engaged in any retaliatory conduct immediately following or soon after he submitted this letter. (See generally id.) Rather, Raymond alleges that he next engaged in protected speech on November 22, 2014, in a meeting with a Platoon Commander who was not an addressee of Raymond’s July 23, 2014, communication. In the meeting, Raymond “denounce[ed] unlawful enforcement quotas that his supervisors were imposing on him, which he felt unfairly targeted [B]lack and [L]atino communities.” (Id. ¶ 76.) Raymond alleges that, five days after that meeting, he was told by a supervisor that the Platoon Commander with whom Raymond had met on November 22, 2014, had “ordered” that supervisor “to lower Raymond’s evaluation score and assign him to a punitive post, in retaliation for Raymond’s stance [towards] the quota.” (Id. ¶ 77.) His supervisor also allegedly told him that “an honest assessment of [his] performance would result in an annual evaluation score of 4.0.” (Id.)
Since January 2015, Raymond has allegedly received “subpar interim and annual evaluation ratings of 2.5 out of 5.0,” putting him at risk of being placed into [the PMP]” in alleged retaliation for speaking out against the quota. (Id. ¶ 78.) Raymond also alleges that, in retaliation for his alleged First Amendment-protected speech, he experienced the following events in January 2015: (1) the Platoon Commander denied his request to attend a presidential task force meeting on the basis of his subpar performance; (2) the commanding officer, whom

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Raymond had identified as imposing the quota in the letter sent in July, issued Raymond a failing interim evaluation; and (3) he was given an annual evaluation rating of 2.5 out of 5.0 for 2014, which was finalized in August 2015 by Proposed Individual Defendant Tsachas as “retaliation for Raymond’s expressed opposition to the quota.” (Id. ¶¶ 79-84.)
The Proposed Defendants oppose Raymond’s First Amendment claim, arguing that the Court need not examine whether the July 23, 2014, letter “was constitutionally protected” because the claim fails to allege causation, “as the first adverse action allegedly occurred four months later.” (Opp. Br. at 19.) Defendants also assert that the November 22, 2014, conversation was not constitutionally protected speech because “it is essentially a personal grievance about the effect of [the] NYPD’s productivity standards upon [Raymond’s] standing within the NYPD.” (Id.)
The Court first must determine whether Raymond alleges sufficiently that he spoke as a citizen on a matter of public concern. See Montero, 890 F.3d at 395. Raymond alleges plausibly that he spoke as a citizen when he submitted the July 23, 2014, letter and when he met with the Platoon Commander on November 22, 2014, as both incidents of speech “merely concerned” his duties as a police officer and were not “ordinarily within the scope of an employee’s duties.” See Montero, 890 F.3d at 398. The Proposed SAC does not include any facts to support an inference that commentary on the quota system was within the scope of a police officer’s duties. Though each incident of speech about the quotas was made through internal NYPD channels to which a private citizen would not have access, such as through the internal Re-Engineering focus group, which was comprised of police officers and to which Raymond had been invited to participate as part of his role as an officer, and in conversations with his platoon commander and his individual supervisors (see Proposed SAC ¶¶ 74-76),

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neither incident was “composed of statements made as a means to fulfill, or undertaken in the course of performing[,] [Raymond’s] responsibilities as a police officer,” as the role is described in the Proposed SAC. See Montero, 890 F.3d at 399 (internal quotation marks and citations omitted). Furthermore, Raymond’s statements on July 23, 2014, and November 22, 2014, were “on a matter of public concern,” as speech by a New York City police officer “about the quota system imposed on him and other officers by direct supervisors . . . addresse[s] a matter of public concern.” See Matthews, 488 Fed. App’x at 533. Defendants’ argument that Raymond was motivated by a personal grievance about the effect of the NYPD’s productivity standards upon his standing within the NYPD is unavailing. Even if Raymond was “motivated by a personal grievance,” he alleges plausibly that, in his November 22, 2014, conversation, he was “simultaneously speak[ing] on a matter affecting the public at large” (the quota system), and therefore was speaking on a matter of public concern. See Montero, 890 F.3d at 395. Thus, Raymond has plead sufficiently that he engaged in speech in his capacity as a private citizen on a matter of public concern on July 23, 2014, and November 22, 2014. See id.
With respect to the adverse employment action prong of the inquiry, Raymond has alleged sufficiently that Defendants “took an adverse action against him.” See id. His allegations of being passed over for promotions, the reduction of his evaluation score by a supervisor upon the Platoon Commander’s instruction, assignments to a punitive posting, and receipt of failing and low evaluation scores despite a supervisor’s admission that an “honest assessment” would have resulted in a higher evaluation score are plausible allegations of “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action.’” See Zelnik, 464 F.3d at 225-26; (see also Proposed SAC ¶¶ 77-84).

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Plaintiffs have alleged sufficiently that the timing of the November 22, 2014, conversation with the Platoon Commander “warrant[s] the inference that [that incident of speech was] a substantial motivating factor in the adverse employment action[s]” described above, and that such adverse actions “would not have been taken absent the employee’s protected speech.” See Stajic, 214 F. Supp. 3d at 235. Plaintiffs have plead plausibly that there is a causal connection by alleging that Raymond’s November 22, 2014, incident of protected activity was “followed [close in time] by adverse treatment in employment,” and by proffering direct evidence of retaliatory animus” in the form of the supervisor’s alleged statement that the evaluation and punitive posting were imposed “in retaliation for Raymond’s stance on the quota which Raymond had expressed to [the Platoon Commander].” See id.; (see also Proposed SAC ¶ 77.) Plaintiffs may sufficiently plead “a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action, . . . and generally, temporal proximity is strong circumstantial evidence of improper intent.” Id. (quotation marks, citations, and brackets omitted). The adverse actions that occurred in November 2014, immediately following his November 22, 2014, conversation are in sufficient temporal proximity to support an inference of causal connection. Plaintiffs further allege that, after Proposed Individual Defendant Tsachas took over the command in 2015, he imposed a low performance rating to defeat Raymond’s promotion and directed that Raymond be put on a punitive posting until he stopped resisting the quota. (See Proposed SAC ¶¶ 82-87.) This direct evidence of animus based on speech in opposition to the quota is sufficient to sustain a First Amendment retaliation claim against Proposed Individual Defendant Tsachas for the low rating, denial of promotion and punitive posting. The four-month period that elapsed between the first alleged adverse action, in November 2014, and the July 23, 2014, letter, however, is too attenuated to provide a plausible

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basis for an inference of a causal connection based on temporal proximity. See Adams, 2012 WL 693568, at *16.
For these reasons, Plaintiffs’ motion for leave to file a further amended complaint thus is denied as to Raymond’s First Amendment retaliation claim based on the incident of speech that occurred in 2008 and the July 23, 2014, letter, and granted as to the claim against Proposed Individual Defendant Tsachas based on the 2015 performance evaluation, promotion denial and punitive posting actions that followed the November 22, 2014, meeting with the Platoon Commander. Plaintiff has not plausibly plead a retaliation claim against any of the other named Individual Defendants, nor has he alleged facts plausibly supporting a policy-based claim against the City in this connection.
3. Polanco Polanco alleges that he engaged in speech protected by the First Amendment by testifying about the NYPD’s maintenance of the quota system in a deposition in 2009 in Floyd v. City of New York, a class action lawsuit in this district concerning unconstitutional “stop and frisk” activity by the NYPD, and that he was punished thereafter “with unwarranted and improperly conducted disciplinary investigations, including integrity tests and interrogations, and imposed unfounded, unwarranted and overly disciplinary penalties including, loss of vacation and suspension.” (See Proposed SAC ¶ 144.) He does not allege specifics of incidents or dates. Defendants are correct that Polanco’s claim, insofar as it is based on testimony made in 2009, is barred by the three-year statute of limitations, as this action was initiated in 2015, and claims based on any such retaliatory conduct occurring before 2012 is time-barred. See Smith, 782 F.3d at 99-100. Polanco has plead no causal connection between the 2009 testimony and any alleged retaliation occurring after 2012.

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Polanco also alleges that, following his Floyd trial testimony in March 2013 regarding law enforcement quotas and a work environment hostile to Latinos, he experienced retaliation by being placed in the PMP, suspended with pay, and placed on dismissal probation from December 2013 to December 2014. (See Proposed SAC ¶¶ 144-46.)
Plaintiff Polanco’s testimony in the Floyd case in March 2013 was clearly protected speech. See Lane, 134 S. Ct. at 2378 (a public employee’s speech consisting of sworn testimony, compelled by subpoena, was speech as a citizen, protected by the First Amendment, because it was outside the scope of the employee’s ordinary responsibilities). However, Polanco “may not rely on conclusory assertions of retaliatory motive to satisfy the causal link” between his March 2013 testimony and his placement in the PMP and suspension with pay, which occurred at unspecified times, and his placement on dismissal probation from December 2013 to December 2014, the circumstances of which are not specified in the Proposed SAC. See Cobb, 363 F.3d at 108. Polanco does not proffer facts as to who specifically retaliated against him or when, but instead makes vague, generalized statements that he was placed in the PMP, was suspended with pay, and placed on dismissal probation for one year. (See Proposed SAC ¶ 146.) His claims against the Proposed Individual Defendants in this regard fail because he has not alleged facts demonstrating that any of them took any particular actions in reaction to his testimony, and his reliance on vicarious liability as to the City is misplaced. In the absence of facts demonstrating a Proposed Individual Defendant’s personal involvement in the alleged First Amendment violation, Polanco cannot state a claim against any particular individual for such retaliation. He proffers no factual allegations plausibly linking the retaliation to any official policy, so his claim against the City in this regard is futile. Polanco’s allegations concerning

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retaliation for his March 2013 deposition testimony thus fail to state a claim upon which relief may be granted.
Plaintiffs’ motion for leave to file a further amended complaint is therefore denied as to Polanco’s First Amendment retaliation claim.
4. Waller Waller alleges that he was retaliated against for engaging in protected speech (1) to his supervisors within the NYPD “on several [unspecified] occasions regarding the quota and the unfair punishment for not meeting the quota;” (2) on May 8, 2012, at a meeting with officers of the Performance Monitoring Division regarding his placement in the PMP, in which he “complained about being compelled to meet an illegal quota[;]” and (3) on March 31, 2016, in an interview with NBC News, regarding his claims of racial discrimination in the NYPD and the imposition of “illegal arrest and summons quotas on him.” (See Proposed SAC ¶¶ 174-75, 178.) He alleges that he was retaliated against for (1) the unspecified speech “by being excluded from any off duty employment which other officers are routinely allowed to engage in and . . . from spike overtime out of a squad patrol vehicle,” receiving foot post assignments despite being “the most senior officer in his squad,” and being “given steady tours of SKYWATCH, a solely punitive posting;” (2) the May 2012 speech by being “punitively posted to SKYWATCH 16 times” between June 9, 2013 and September 21, 2013; and (3) the March 2016 speech by being issued a CD seven days later for being fifteen minutes late to a shift despite notifying his platoon commander of his anticipated tardiness, and by being given a punitive reassignment to a less desirable posting in April 2016, where he was kept until his retirement in August 2016. (See id. ¶¶ 174, 176, 179-84.)

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Defendants assert that Waller fails to plead facts sufficient to support a First Amendment retaliation claim because certain of the allegedly retaliatory actions merely constitute the application of NYPD disciplinary policies, a CD does not constitute an adverse action under First Amendment jurisprudence, and Waller does not specify who was responsible for his April 2016 reassignment to foot patrol. (Opp. Br. at 22.)
Plaintiffs fail to allege that Waller’s first incident of speech constitutes a protected activity because the Proposed SAC does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” See Iqbal, 556 U.S. at 678 (2009). Waller’s pleading is vague and lacks specificity as to when and to whom within the NYPD he complained “regarding the quota and the unfair punishment for not meeting the quota,” precluding the requisite assessments of whether he was speaking as a citizen on a matter of public concern and whether there was any causal link to the allegedly retaliatory measures.
Waller’s allegations concerning his May 8, 2012, protest against being compelled to meet an illegal quota include sufficient facts to allege plausibly that the speech was protected by the First Amendment. Though he was meeting with officers of the Performance Monitoring Division regarding his placement in the PMP and his speech necessarily “concerned” his duties as a police officer, his statements about the illegality of the quota system was not “itself ordinarily within the scope of [a police officer’s] duties.” See Montero, 890 F.3d at 397-98. The illegality of the alleged quota system is a matter of public concern. See Matthews, 488 Fed. App’x at 533. Taking the facts proffered in the Proposed SAC as true, Waller’s statements at this meeting were made as a citizen speaking on a matter of public concern, and thus were protected by the First Amendment. See Montero, 890 F.3d at 394. Sixteen postings to the SKYWATCH patrol, which Plaintiffs allege is a “solely punitive posting” (Proposed SAC ¶

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174), could be considered an adverse employment action for purposes of a First Amendment claim, as such assignments “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action.’” See Zelnik, 464 F.3d at 225. Waller’s claims insofar as they are based on the May 8, 2012, incident, however, fail because Plaintiffs do not plead facts to support an inference of a causal connection between the speech and the 16 SKYWATCH posting assignments. Plaintiffs do not plausibly plead facts showing that there is direct evidence of retaliatory conduct, and thus the Court considers whether Plaintiffs have plead sufficiently temporal proximity to support indirect causation. See Stajic, 214 F. Supp. 3d at 235. The one year, one month, and one day that elapsed between the May 8, 2012, meeting and Waller’s first alleged assignment to a SKYWATCH posting on June 9, 2013, is far too attenuated a period to support an inference of a causal connection. See Payson, 2017 WL 4221455, at *13; Birch, 184 F. Supp. 3d at 32; Adams, 2012 WL 693568, at *16.
With respect to Waller’s interview with NBC News on March 31, 2016, and his allegations of subsequent retaliatory conduct in violation of his First Amendment rights, even though these claims could be timely and construed as plausibly alleging adverse actions and causation, Plaintiffs’ motion to assert these claims is denied as futile because Waller does not allege the involvement of any Proposed Individual Defendant, nor does he allege facts sufficient to support a Monell-based claim against the City.
Plaintiffs’ motion for leave to file a further amended complaint is therefore denied as to Waller’s First Amendment retaliation claim.
5. Gonzalez Gonzalez alleges that he was retaliated against for engaging in speech protected by the First Amendment following his February 6, 2014, filing of written complaints with the

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IAB and the EEOC, detailing alleged violations including “enforcement of an illegal quota, the misclassification of offen[s]es and downgrading of felonies[,] and racial discrimination against minorities by virtue of a hostile work environment,” two days after his appeal of his annual performance evaluation score was denied. (Proposed SAC ¶¶ 109-10.) Plaintiffs allege that the complaints triggered investigations by each of those agencies into the misclassification of offenses and downgrading of felonies, and that Proposed Individual Defendant McCormack and Lt. Hatki were aware of those investigations and “believed that Gonzalez was the source of” them. (Id. ¶¶ 111-12.) The IAB interviewed Gonzalez on March 28, 2014, about his complaint, though the interview ultimately focused on Gonzalez’ own enforcement activity. (Id. ¶ 113.) Plaintiffs allege that Gonzalez was placed in the PMP in April 2014 approximately two months following his IAB and EEOC complaints, and that, after he wrote to the IAB and the OEEO complaining about “intensified retaliation,” he experienced a series of retaliatory actions throughout the second half of 2015. (Id. ¶¶ 114, 122, 127-30.)
Specifically, Plaintiffs allege that Proposed Individual Defendant McCormack and Hatki informed members of Gonzalez’ precinct, including a supervisor, Sergeant Tameika Goode, that Gonzalez was a “rat” and he was “recording everyone in the precinct.” (Id. ¶ 116.) Goode accused Gonzalez of recording his conversations with her in May 2015. (Id.) Following July 2015 media reports of an NYPD internal investigation that had revealed multiple cases of the downgrading of felonies in the 40th Precinct, nineteen police and ranked officers in that precinct “were charged with misconduct and faced disciplinary proceedings” and “were transferred out of the . . . Precinct.” (Id. ¶ 117.) During an “extraordinary roll call” of the 40th Precinct, at which then Police Commissioner William Bratton and then Chief of Department and current Police Commissioner James O’Neill were in attendance, Proposed Individual Defendant

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Bratton “stated to the entire precinct that a disgruntled officer among them had dropped the dime on the entire precinct,” and that “[i]t was understood that” Bratton was referring to Gonzalez. (Id. ¶¶ 118-19.) Goode was also present at the roll call. (Id. ¶ 119.)
Beginning in July 2015, Gonzalez received unfavorable assignments from Goode and Hatki that “ensured that [he] would never be able to meet the monthly quota of summons or arrests,” placing him “in a position of chronically underperforming with respect to his enforcement activity numbers.” (Id. ¶ 120.) He also was issued an “unde[]served minor violation” and found guilty of recording Goode with a cell phone on August 22, 2015, and issued a CD, without the opportunity to defend himself. (Id. ¶¶ 121-22, 129.) During a roll call on or about August 26, 2015, Goode allegedly “stated that Gonzalez was not to be trusted because he was videotaping and recording everyone at the precinct,” after which Gonzalez fainted and was admitted to the hospital, an injury for which Hatki allegedly destroyed necessary paperwork and denied Gonzalez a line of duty designation and, consequently, coverage for treatment. (Id. ¶¶ 123-26.) Gonzalez complained to the IAB and OEEO on September 7, 2015, “about the intensified retaliation that he was experiencing[,] including the incidents at roll call.” (Id. ¶ 127.) In October 2015, Gonzalez was issued another CD for allegedly recording Goode again. (Id. ¶ 128.) On November 27, 2015, he was “unfairly issued with two minor violations for having a cap device that did not ma[t]ch his shield, and for a defective holster” by a Captain Girven “because Gonzalez was a target for punishment by the leadership of the precinct, and had been labeled a ‘rat’.” (Id. ¶ 130.)
Defendants assert that Gonzalez’s speech was not protected because he was speaking as public employee and not as a citizen in filing a complaint with the IAB, and that, except for the April 2014 placement in the PMP, none of the alleged retaliatory conduct occurred

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sufficiently close enough in time to his February 2014 complaints to support an inference of a causal connection. (See Opp. Br. at 21.) Defendants do not dispute that Gonzalez’s complaint to the EEOC was protected speech. (See id.)
Gonzalez has alleged plausibly that his complaints to the IAB and EEOC regarding the quota system and racial discrimination in the NYPD in February 2014 and on September 7, 2015, were protected speech, as he was speaking as a citizen on “a matter of public concern,” and the speech was not “ordinarily within the scope of” his duties as a police officer. See Montero, 890 F.3d at 395-99; see also Schoolcraft v. City of N.Y., 103 F. Supp. 3d 465, 51011 (S.D.N.Y. 2015) (concluding that complaints filed with the IAB have a civilian analogue and, as the speech was not “part-and-parcel” of plaintiff’s role, it was “protected” for purposes of the First Amendment); Krzesaj v. New York City Dep’t of Educ., No. 16-civ-2926-ER, 2017 WL 1031278, at *9 (S.D.N.Y. Mar. 15, 2017) (“. . . courts have repeatedly emphasized a public employee’s complaint to outside or external agencies as a factor weighing heavily in favor of finding that the employee was acting as a private citizen.”). Moreover, “[t]he Second Circuit . . . has ‘held repeatedly that when a public employee’s speech regards the existence of discrimination in the workplace, such speech is a matter of public concern.’” Barone v. Judicial Branch Conn., No. 3:17-CV-00644-VAB, 2018 WL 1368906, at *6 (D. Conn. Mar. 16, 2018) (quoting Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d 121 (2d Cir. 2005) and citing Mandell, 316 F.4d at 383).
Gonzalez’s placement in the PMP in April 2014 was an “adverse action” for purposes of a First Amendment retaliation claim, as it can be considered a “reprimand.” See Zelnik, 464 F.3d at 225. Plaintiffs, however, have not alleged facts supporting an inference of the requisite “causal connection” between the February 2014 complaints and the PMP

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placement, or that his IAB and EEOC complaints [were] “a substantial motivating factor in the” decision to place him in the PMP or that the decision “would not have been taken absent the” filing of the complaints. See Stajic, 214 F. Supp. 3d at 235. Plaintiffs plead that, before he filed the IAB and EEOC complaints, Gonzalez was warned repeatedly about the imminent risk of his placement in the PMP: in January 2014, during his annual performance review, and again on February 4, 2014, when Gonzalez appealed his annual performance evaluation rating. (See Proposed SAC ¶¶ 107, 109.) Even “draw[ing] all inferences in [Gonzalez’s] favor,” as the Court must at this stage, Plaintiffs have not alleged that Gonzalez “would not have been” placed in the PMP “absent” the filing of the IAB and EEOC complaints. See Stajic, 214 F. Supp. 3d at 235. Plaintiffs thus fail to state a First Amendment retaliation claim as to Gonzalez’ placement in the PMP two months after filing complaints with the IAB and EEOC.
Plaintiffs sufficiently plead allegations of First Amendment retaliation for Gonzalez’ IAB and EEOC complaints that allegedly occurred throughout 2015, beginning in May 2015. The accusations of improper conduct, including Gonzalez’ receipt of violations for recording Goode without her consent and undeserved violations for leaving his post, having a cap device that did not match his shield, and a defective holster, as well as the denial of coverage connected to the denial of a line of duty designation for his fainting episode and the public accusations of being a “rat” made by Bratton at the “extraordinary roll call,” all constitute “adverse employment actions.” See Zelnik, 464 F.3d at 226.
Plaintiffs satisfy the “causal connection” prong of the analysis, as their allegations are “sufficient to warrant the inference that” Gonzalez’ many statements to the IAB and EEOC, from February 2014 to September 2015, were “a substantial motivating factor in the adverse employment actions” he alleges. See Stajic, 214 F. Supp. 3d at 235. As Plaintiffs sufficiently

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allege with specificity that the retaliation was ongoing from the time of Gonzalez’ initial complaints, and that those complaints were the basis for the retaliatory actions, they have sufficiently plead a retaliatory motive as to certain Proposed Individual Defendants. Specifically, Plaintiffs sufficiently plead “causal connections” to Proposed Individual Defendants McCormack, O’Neill and Bratton, as Plaintiffs allege that those Defendants effectively communicated to the 40th Precinct that Gonzalez was the source of the IAB and EEOC investigations and, moreover, created an atmosphere that encouraged distrust and maltreatment of Gonzalez. Furthermore, since Bratton was the chief policy maker for the NYPD at the time, and O’Neill also exercised significant influence over the development and implementation of NYPD policy as the Chief of Department, Bratton and O’Neill’s implicit instruction to crack down or retaliate against the person thought to be recording or reporting on others on July 20, 2015, supports a Monell claim against the City for the retaliatory conduct against Gonzalez.
Plaintiffs’ motion for leave to file a further amended complaint is granted as to Gonzalez’ First Amendment retaliation claim against the City and Proposed Individual Defendants McCormack, O’Neill and Bratton, to the extent it is premised on the alleged retaliatory conduct from May to November 2015. Plaintiffs’ motion is denied as to Gonzalez’ First Amendment retaliation claim to the extent it is premised on his April 2014 placement in the PMP.
6. Serrano Serrano alleges that he was retaliated against for engaging in speech protected by the First Amendment following his June 1, 2012, filing of an EEOC complaint, which was then referred to the OEEO, stating that he was being discriminated against “as a Latino” by Proposed Individual Defendant McCormack and a captain, who forced him “to work in a racially hostile environment” and “to downgrade felonies,” and compelled him and others “to meet a quota of

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law enforcement actions every month.” (Proposed SAC ¶ 153.) He further alleges that he gave a summary of that complaint to the New York Civil Liberties Union and “made similar complaints in writing several times to his” union delegate. (Id.) Serrano alleges that McCormack and the captain first learned of his complaints against them on February 7, 2013, and that McCormack soon thereafter “commenced a series of retaliatory action[s]” against him, including a reassignment from his usual patrol assignment to a solitary fixed foot post, inspections by multiple supervisors (including, unusually, McCormack himself) during a single shift, sending him outside the precinct on details, and denying leave requests despite the fact he “requested days off in the usual manner.” (Id. ¶¶ 155-57.) Serrano further alleges that, in February 2013, shortly before he was expected to testify in the Floyd trial, McCormack threatened that, if Serrano testified, McCormack would scrutinize Serrano’s memo book and issue a CD for every mistake in the book. (Id. ¶ 164.) Serrano goes on to allege that, on or about April 5, 2013, following his March 2013 testimony in Floyd (in which he testified that McCormack and others had compelled him to racially profile Blacks and Latinos), he was transferred out of his precinct, where he was assigned the midnight tour, to a precinct where he was assigned the day tour, and thus “he lost his night differential pay,” amounting to about $5,000 a year. (See id. ¶¶ 165-67.) Defendants do not address Serrano’s allegations of retaliation for his June 1, 2012, complaints, but only argue that his claim is insufficiently plead because the transfer between precincts following Serrano’s Floyd testimony was not an adverse employment action. (See Opp. Br. at 20.)
For similar reasons to those discussed above with respect to Polanco’s and Gonzalez’s First Amendment claims, Serrano’s proffers concerning his (1) complaints to the EEOC and the OEEO, and (2) testimony in Floyd allege plausibly that Serrano engaged in

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protected activity. See Montero, 890 F.3d at 394-99; Schoolcraft, 103 F. Supp. 3d at 510; Krzesaj, 2017 WL 1031278, at *9; Lane, 134 S. Ct. at 2378; and Matthews, 488 Fed. App’x at 533. Serrano’s allegations that he complained in writing to his union delegate about the quota system also plead sufficiently that he engaged in protected activity, because that speech is not “itself ordinarily within the scope of [a police officer’s] duties,” even if it “merely concerns those duties.” See Montero, 890 F.3d at 398-99 (quoting Weintraub, 593 F.3d at 203) (holding that a police officer’s union speech, spoken in his role as a union officer, and not made “as a means to fulfill” or “undertaken in the course of performing” his responsibilities as a police officer was citizen speech for purposes of the First Amendment).
The conduct that Serrano alleges was undertaken in retaliation for his 2012 complaints is “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights” and thus supports an inference of an “adverse action.” See Zelnik, 464 F.3d at 225 (2d Cir. 2015). Plaintiffs plead that reassignment to a solitary fixed foot post and inspections by supervising officers is “highly unusual and an indication that the object of the post is punishment” and that the “inspections were intended to convey a threat to Serrano that he would be under increased scrutiny and would be punished for minor or pretextual infractions.” (See Proposed SAC ¶ 155.) Such allegations describe conduct in the nature of “reprimands” and thus are sufficient to plead adverse action. See Zelnik, 464 F.3d at 226. Finally, Plaintiffs sufficiently allege facts to support direct and indirect causal connections. Serrano’s supervisors, including Proposed Individual Defendant McCormack, commenced their allegedly retaliatory actions shortly after learning of Serrano’s protected activity in February 2013 and, as “there is no hard and fast rule for the amount of time that must pass before a causal connection is necessarily broken,” the temporal proximity as alleged in the

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Proposed SAC is sufficient. See Birch, 184 F. Supp. 3d at 32. Serrano further alleges a specific threat and direct retaliatory action by McCormack.
The retaliatory conduct Plaintiffs allege that Serrano experienced in response to his Floyd testimony is also sufficient to support a claim of an “adverse action.” (Proposed SAC ¶¶ 165-67.) Plaintiffs’ allegations regarding Serrano’s transfer from his midnight tour in the 40th Precinct to the day tour in the 33rd Precinct, resulting in a difference in pay of about $5,000 per year, support an inference that he experienced a “reduction in pay.” See Zelnik, 464 F.3d at 22526. Plaintiffs also satisfy the “causal connection” prong of the inquiry, as they have sufficiently plead allegations to warrant the inference that Serrano’s Floyd trial testimony “was a substantial motivating factor” in his “reduction in pay,” as the reassignment occurred within a month of Serrano’s protected speech, and such “temporal proximity is strong circumstantial evidence of improper intent.” See Stajic, 214 F. Supp. 3d at 235.
Plaintiffs’ motion for leave to amend their complaint is therefore granted as to Serrano’s First Amendment retaliation claim against Proposed Individual Defendant McCormack only.
7. Conclusion: First Amendment Retaliation Claims
Plaintiffs’ motion for leave to file a further amended complaint with respect to First Amendment retaliation claims is thus granted as to Raymond’s claim against Proposed Individual Defendant Tsachas based on the 2015 performance evaluation, promotion denial and punitive posting actions that followed the November 22, 2014, meeting with the Platoon Commander; Gonzalez’ First Amendment retaliation claim against the City and Proposed Individual Defendants McCormack, O’Neill and Bratton, to the extent he alleges retaliatory conduct from May to November 2015; and Serrano’s First Amendment retaliation claim against

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Proposed Individual Defendant McCormack only. Plaintiffs’ motion to amend to reassert Plaintiffs’ First Amendment retaliation claims is denied in all other respects.

C. Individual and Municipal Liability under Sections 1981 and 1983 The Court previously found the Amended Complaint insufficient “because the
named Individual Defendants, all of whom work in supervisory capacities, [were] not alleged to have been involved personally in the alleged violations or to have personally approved or authorized the challenged actions.” Motion to Dismiss Opinion, 2017 WL 892350, at *5. In the Proposed SAC, Plaintiffs seek to remove one named Defendant, Chief Carlos M. Gomez, and add four new Defendants: McCormack, Tsachas, Tucker, and Richardson.
“An individual may be held liable under [Sections 1981 and 1983] only if that individual is personally involved in the alleged deprivation.” Littlejohn, 795 F.3d at 314 (2d Cir. 2015) (internal quotation marks and citations omitted). “To lay a proper foundation for individual liability, the plaintiff must plead specific, nonconclusory factual allegations to establish the participation at the necessary mental state of the individual defendants, or [his or her] claims against them will be dismissed.” Bermudez, 783 F. Supp. 2d at 602.
As for Plaintiffs’ claims against the City and against Defendants in their official capacities, when suing a municipality “for discrimination under §§ 1981 or 1983 . . . plaintiff[s] [are] required to show that the challenged acts were performed pursuant to a municipal policy or custom,” and they “need not identify an express rule or regulation,” but can instead establish liability by showing “that a discriminatory practice of municipal officials was so persistent or widespread as to constitute a custom or usage with the force of law, or that a discriminatory practice of subordinate employees was so manifest as to imply the constructive acquiescence of

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senior policy-making officials.” See Littlejohn, 795 F.3d at 314 (citing Patterson v. Cty. Of Oneida, 375 F.3d 206, 226 (2d Cir. 2004); Monell, 436 U.S. at 692–94). Respondeat superior “cannot be the basis of municipal defendant liability under §§ 1981 or 1983.” Id. at 315.
The Court has applied the foregoing standards in reaching the determinations set forth above as to the extent to which Plaintiffs will be permitted to replead claims. Because no non-conclusory factual basis for liability has been plead plausibly against Proposed Individual Defendants de Blasio, Tucker and Richardson, Plaintiffs are denied leave to plead all proposed claims against those Proposed Individual Defendants in the SAC. As to the City and the other Proposed Individual Defendants, leave is granted only to the extent set forth above, for the reasons set forth above.
D. Putative Class Claims Plaintiffs have not proffered plausible nonconclusory factual pleading indicative
of a viable cause of action based on classwide conduct of the City or of any of the Proposed Individual Defendants. Accordingly, the motion for leave to replead is denied to the extent Plaintiffs seek to pursue a putative class action.
E. Permanent Injunction Claim (Seventeenth Cause of Action)
Plaintiffs seek a permanent injunction prohibiting Defendants “from racially discriminating against Black and Latino members of the NYPD in the performance evaluation system, in placement into the Performance Monitoring Program, and in the administration of [d]iscipline and [p]unishment.” (Proposed SAC ¶¶ 288-89.)
To obtain a permanent injunction, a party seeking such relief must demonstrate, among other things, that “‘it has suffered an irreparable injury’.” World Wide Polymers, Inc. v.

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Shinkong Synthetic Fibers Corp., 694 F.3d 155, 160-61 (2d Cir. 2012) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). Plaintiffs have neither tied this claim for injunctive relief to a sufficient claim on the merits nor plead facts indicative of a prospect of irreparable harm. Plaintiffs’ motion is therefore denied with respect to the Seventeenth Cause of Action.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for leave to file a Second Amended Complaint is granted as to Raymond’s federal discrimination claims relating to his punishment for submitting a late vacation request and for failing to meet quotas, as against Proposed Individual Defendant Tsachas only; Gonzalez’ and Baez’ federal discrimination claims relating to negative performance evaluations and placement on PMP, as against Proposed Individual Defendant McCormack only; Serrano’s federal discrimination claim relating to his negative 2012 performance rating, as against Proposed Individual Defendant McCormack only; and Gonzalez’ and Serrano’s claims of retaliation for complaining of discrimination, as against proposed Individual Defendant McCormack only. Plaintiffs’ motion is also granted as to their NYSHRL and NYCHRL claims that parallel the federal claims that are permitted to be asserted in the Second Amended Complaint. Plaintiffs’ motion for leave to file a further amended complaint with respect to First Amendment retaliation claims is granted as to Raymond’s claim against Proposed Individual Defendant Tsachas based on the 2015 performance evaluation, promotion denial and punitive posting actions that followed the November 22, 2014, meeting with the Platoon Commander; Gonzalez’ First Amendment retaliation claim, to the extent he alleges retaliatory conduct from May to November 2015, against the City and Proposed Individual Defendants McCormack, O’Neill and Bratton; and Serrano’s First Amendment retaliation claim

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against Proposed Individual Defendant McCormack. The motion is denied as to the remainder of the Proposed SAC.
Plaintiffs are directed to file a Proposed SAC consistent with this Opinion and Order no later than fourteen (14) days from the date of this Opinion and Order, or Wednesday, July 11, 2018.
This case will be referred to the designated magistrate judge for general pretrial management, and Plaintiffs’ counsel are directed to contact that judge’s chambers promptly to schedule an initial conference. The July 10, 2018, pretrial conference is adjourned sine die in light of the referral.
This Opinion and Order resolves Docket Entry No. 64.

SO ORDERED.
Dated: New York, New York June 27, 2018

/s/ Laura Taylor Swain . LAURA TAYLOR SWAIN United States District Judge

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 CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:15−cv−06885−LTS−SLC

Raymond et al v. The City of New York et al Assigned to: Judge Laura Taylor Swain Referred to: Magistrate Judge Sarah L Cave Demand: $20,000 Cause: 42:1983 Civil Rights (Employment Discrimination)
Plaintiff

Date Filed: 08/31/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Edreweene Raymond individually, and on behalf of a class of all others similarly situated

represented by John Andrew Scola , Jr Law Office of John A. Scola, PLLC 120 Macdougal Street New York, NY 10012 (212)−537−0598 Fax: (800)−516−5929 Email: jscola@johnscolalaw.com ATTORNEY TO BE NOTICED

Chukwuemeka Nwokoro Nwokoro & Associates, P.C. 30 Broad Street, Suite 1424 New York, NY 10004 (212)−785−1060 Fax: (212)−785−1066 Email: emekanwokoro101@yahoo.com ATTORNEY TO BE NOTICED

Plaintiff
Adhyl Polanco individually, and on behalf of a class of all others similarly situated

represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED

Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Pedro Serrano individually, and on behalf of a class of all others similarly situated

represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED

Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sandy Gonzalez individually, and on behalf of a class of all others similarly situated

represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED

Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ritchie Baez individually, and on behalf of a class of all others similarly situated

represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Julio Diaz individually, and on behalf of a class of all others similarly situated
Plaintiff Felicia Whitely individually, and on behalf of a class of all others similarly situated
Plaintiff Roman Goris individually, and on behalf of a class of all others similarly situated
Plaintiff Derick Waller individually, and on behalf of a class of all others similarly situated
Plaintiff Kareem Abdullah individually, and on behalf of a class of all others similarly situated
Plaintiff Olayokun Olagoke individually, and on behalf of a class of all others similarly situated
Plaintiff

Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED
Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED
Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED
Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED
Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED
Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED
Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED
represented by

Widmarc Pierre individually, and on behalf of a class of all others similarly situated
V. Defendant New York City Police Department TERMINATED: 12/11/2015
Defendant City of New York
Defendant Mayor of the City of New York Bill deBlasio in his individual and official capacity
Defendant Police Commissioner William J. Bratton in his individual and official capacity
Defendant

John Andrew Scola , Jr (See above for address) ATTORNEY TO BE NOTICED
Chukwuemeka Nwokoro (See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen Marie Comfrey NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 212−848−4178 Fax: 646−848−4178 Email: kcomfrey@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yuval Rubinstein New York City Law Department 100 Church Street New York, NY 10007 (212)−788−8682 Fax: (212)−341−3934 Email: yrubinst@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Kathleen Marie Comfrey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen Marie Comfrey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen Marie Comfrey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address) ATTORNEY TO BE NOTICED

NYPD Chief of Department James P. O'Neill in his individual and official capacity
Defendant Bureau Chief NYPD Commanding Officer of Patrol Services Carlos M Gomez in his individual and official capacity
Defendant Christopher McCormack
Defendant Constantin Tsachas

represented by Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED
Yuval Rubinstein (See above for address) ATTORNEY TO BE NOTICED
represented by Yuval Rubinstein (See above for address) ATTORNEY TO BE NOTICED
represented by Yuval Rubinstein (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/31/2015 08/31/2015 08/31/2015 08/31/2015 08/31/2015 08/31/2015 08/31/2015 08/31/2015 09/01/2015

# Docket Text
1 COMPLAINT against The City of New Yorkk. (Filing Fee $ 400.00, Receipt Number 0208−11337645)Document filed by Edreweene Raymond.(Nwokoro, Chukwuemeka) (Entered: 08/31/2015)
2 CIVIL COVER SHEET filed. (Nwokoro, Chukwuemeka) (Entered: 08/31/2015)
3 REQUEST FOR ISSUANCE OF SUMMONS as to The City of New York, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 08/31/2015)
4 REQUEST FOR ISSUANCE OF SUMMONS as to The New York City Police Department, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 08/31/2015)
5 REQUEST FOR ISSUANCE OF SUMMONS as to Bill De Blasio, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 08/31/2015)
6 REQUEST FOR ISSUANCE OF SUMMONS as to William J. Bratton, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 08/31/2015)
7 REQUEST FOR ISSUANCE OF SUMMONS as to James P. O'Neill, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 08/31/2015)
8 REQUEST FOR ISSUANCE OF SUMMONS as to Carlos M. Gomez, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 08/31/2015)
***NOTICE TO ATTORNEY REGARDING CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Chukwuemeka Nwokoro. The following case opening statistical information was erroneously selected/entered: Dollar Demand 20,000,000; County code New York. The following correction(s) have been made to your case entry: the Dollar Demand has been modified to 9,

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999,000; the County code has been modified to Kings. (rch) (Entered: 09/01/2015)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Chukwuemeka Nwokoro. The party information for the following party/parties has been modified: Julio Diaz, Roman Goris, Olayokun Olagoke, Adhyl Polanco, Pedro Serrano, Derick Waller, Felicia Whitely, Sandy Gonzalez. The information for the party/parties has been modified for the following reason/reasons: party text was omitted. (rch) (Entered: 09/01/2015)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Chukwuemeka Nwokoro to RE−FILE Document No. 1 Complaint. The filing is deficient for the following reason(s): Parties on docket do not match parties on complaint. Re−file the pleading using the event type Complaint found under the event list Complaints and Other Initiating Documents − attach the correct signed PDF − select the individually named filer/filers − select the individually named party/parties the pleading is against. (rch) (Entered: 09/01/2015)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE−FILE Document No. 5 Request for Issuance of Summons, 4 Request for Issuance of Summons, 3 Request for Issuance of Summons, 7 Request for Issuance of Summons, 6 Request for Issuance of Summons, 8 Request for Issuance of Summons. The filing is deficient for the following reason(s): Case caption does not match complaint;. Re−file the document using the event type Request for Issuance of Summons found under the event list Service of Process − select the correct filer/filers − and attach the correct summons form PDF. (rch) (Entered: 09/01/2015)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Laura Taylor Swain. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (rch) (Entered: 09/01/2015)
Magistrate Judge Henry B. Pitman is so designated. (rch) (Entered: 09/01/2015)
Case Designated ECF. (rch) (Entered: 09/01/2015)
9 COMPLAINT against William J. Bratton, Carlos M. Gomez, New York City Police Department,, James P. O'Neill, The City of New Yorkk, Bill de Blasio. Document filed by Olayokun Olagoke, Felicia Whitely, Adhyl Polanco, Edreweene Raymond, Julio Diaz, Pedro Serrano, Derick Waller, Widmarc Pierre, Roman Goris, Sandy Gonzalez, Kareem Abdullah, Ritchie Baez.(Nwokoro, Chukwuemeka) (Entered: 09/01/2015)
ADD PARTY FOR PLEADING. Party Olayokun Olagoke, Felicia Whitely, Adhyl Polanco, Edreweene Raymond, Julio Diaz, Pedro Serrano, Derick Waller, Widmarc Pierre, Roman Goris, Sandy Gonzalez, Kareem Abdullah, Ritchie Baez added.Party added pursuant to 1 Complaint. Document filed by Olayokun Olagoke, Felicia Whitely, Adhyl Polanco, Edreweene Raymond, Julio Diaz, Pedro Serrano, Derick Waller, Widmarc Pierre, Roman Goris, Sandy Gonzalez, Kareem Abdullah, Ritchie Baez. Related document: 1 Complaint filed by Edreweene Raymond.(Nwokoro, Chukwuemeka) (Entered: 09/01/2015)
10 REQUEST FOR ISSUANCE OF SUMMONS as to The City of New York, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 09/01/2015)
11 REQUEST FOR ISSUANCE OF SUMMONS as to New York City Police Department, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 09/01/2015)
12 REQUEST FOR ISSUANCE OF SUMMONS as to The Mayor of The City of New York Bill de Blasio in his individual and official capacity, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 09/01/2015)

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10/19/2015
10/20/2015 10/21/2015 11/10/2015 11/12/2015

13 REQUEST FOR ISSUANCE OF SUMMONS as to Police Commissioner William J. Bratton, in his individual and official capacity, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 09/01/2015)
14 REQUEST FOR ISSUANCE OF SUMMONS as to NYPD Chief of Department James P. O'Neill, in his individual and official capacity, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 09/01/2015)
15 REQUEST FOR ISSUANCE OF SUMMONS as to NYPD Commanding Officer of Patrol Services, Carlos M. Gomez, in his individual and official capacity, re: 1 Complaint. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 09/01/2015)
16 ELECTRONIC SUMMONS ISSUED as to City of New York. (rch) (Entered: 09/01/2015)
17 ELECTRONIC SUMMONS ISSUED as to New York City Police Department. (rch) (Entered: 09/01/2015)
18 ELECTRONIC SUMMONS ISSUED as to Mayor of the City of New York Bill deBlasio. (rch) (Entered: 09/01/2015)
19 ELECTRONIC SUMMONS ISSUED as to Police Commissioner William J. Bratton. (rch) (Entered: 09/03/2015)
20 ELECTRONIC SUMMONS ISSUED as to NYPD Chief of Department James P. O'Neill. (rch) (Entered: 09/03/2015)
21 ELECTRONIC SUMMONS ISSUED as to NYPD Commanding Officer of Patrol Services Carlos M Gomez. (rch) (Entered: 09/03/2015)
22 INITIAL CONFERENCE ORDER: Initial Conference set for 12/2/2015 at 11:00 AM in Courtroom 12D, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain. (See Order.) (Signed by Judge Laura Taylor Swain on 10/15/2015) (ajs) (Entered: 10/15/2015)
23 NOTICE OF APPEARANCE by Kathleen Marie Comfrey on behalf of Police Commissioner William J. Bratton, City of New York, New York City Police Department, Mayor of the City of New York Bill deBlasio. (Comfrey, Kathleen) (Entered: 10/16/2015)
24 LETTER MOTION for Extension of Time to File Answer addressed to Judge Laura Taylor Swain from Kathleen M. Comfrey dated October 16, 2015. Document filed by Police Commissioner William J. Bratton, City of New York, New York City Police Department, Mayor of the City of New York Bill deBlasio.(Comfrey, Kathleen) (Entered: 10/16/2015)
25 ORDER granting 24 Letter Motion for Extension of Time to Answer. The requested extension is granted. DE # 24 resolved. SO ORDERED. Police Commissioner William J. Bratton answer due 11/19/2015; City of New York answer due 11/19/2015; New York City Police Department answer due 11/19/2015; Mayor of the City of New York Bill deBlasio answer due 11/19/2015. (Signed by Judge Laura Taylor Swain on 10/19/2015) (ajs) (Entered: 10/19/2015)
26 AFFIDAVIT OF SERVICE. All Defendants. Service was accepted by Madelyn Santana, Docketing Clerk. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 10/21/2015)
27 CERTIFICATE OF SERVICE of INITIAL CONFERENCE ORDER served on ALL DEFENDANTS on 10/19/2015. Service was made by MAIL. Document filed by Edreweene Raymond. (Nwokoro, Chukwuemeka) (Entered: 10/21/2015)
28 LETTER MOTION to Adjourn Conference addressed to Judge Laura Taylor Swain from Chukwuemeka Nwokoro dated November 10, 2015. Document filed by Edreweene Raymond.(Nwokoro, Chukwuemeka) (Entered: 11/10/2015)
29 ORDER granting 28 Letter Motion to Adjourn Conference: The requests are granted. The conference is rescheduled to January 29, 2016, at 11:15 AM and the related deadlines are modified accordingly. DE # 28 resolved. Initial Conference set for

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1/29/2016 at 11:15 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 11/12/2015) (tn) (Entered: 11/13/2015)
Set/Reset Deadlines: Police Commissioner William J. Bratton answer due 1/10/2016; City of New York answer due 1/10/2016; NYPD Commanding Officer of Patrol Services Carlos M Gomez answer due 1/10/2016; New York City Police Department answer due 1/10/2016; NYPD Chief of Department James P. O'Neill answer due 1/10/2016; Mayor of the City of New York Bill deBlasio answer due 1/10/2016. Amended Pleadings due by 12/10/2015. (tn) (Entered: 11/13/2015)
30 FILING ERROR − DEFICIENT PLEADING − FILED AGAINST PARTY ERROR − AMENDED COMPLAINT amending 9 Complaint, against City of New York with JURY DEMAND.Document filed by Edreweene Raymond. Related document: 9 Complaint, filed by Olayokun Olagoke, Julio Diaz, Widmarc Pierre, Roman Goris, Kareem Abdullah, Ritchie Baez, Derick Waller, Pedro Serrano, Sandy Gonzalez, Edreweene Raymond, Felicia Whitely, Adhyl Polanco.(Nwokoro, Chukwuemeka) Modified on 12/8/2015 (moh). (Entered: 12/07/2015)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Chukwuemeka Nwokoro to RE−FILE Document No. 30 Amended Complaint. The filing is deficient for the following reason(s): the wrong party/parties whom the pleading is against were selected. Re−file the pleading using the event type Amended Complaint found under the event list Complaints and Other Initiating Documents − attach the correct signed PDF − select the individually named filer/filers − select the individually named party/parties the pleading is against. (moh) (Entered: 12/08/2015)
31 AMENDED COMPLAINT amending 9 Complaint, against Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio with JURY DEMAND.Document filed by Olayokun Olagoke, Felicia Whitely, Adhyl Polanco, Edreweene Raymond, Julio Diaz, Pedro Serrano, Derick Waller, Widmarc Pierre, Roman Goris, Sandy Gonzalez, Kareem Abdullah, Ritchie Baez. Related document: 9 Complaint, filed by Olayokun Olagoke, Julio Diaz, Widmarc Pierre, Roman Goris, Kareem Abdullah, Ritchie Baez, Derick Waller, Pedro Serrano, Sandy Gonzalez, Edreweene Raymond, Felicia Whitely, Adhyl Polanco.(Nwokoro, Chukwuemeka) (Entered: 12/10/2015)
32 FIRST MOTION to Dismiss the Amended Complaint. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Comfrey, Kathleen) Modified on 1/12/2016 (db). Modified on 4/5/2016 (lb). (Entered: 01/11/2016)
33 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Kathleen M. Comfrey in Support re: 32 FIRST MOTION to Dismiss the Amended Complaint.. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill. (Comfrey, Kathleen) Modified on 1/12/2016 (db). (Entered: 01/11/2016)
34 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Support re: 32 FIRST MOTION to Dismiss the Amended Complaint. . Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill. (Comfrey, Kathleen) Modified on 1/12/2016 (db). (Entered: 01/11/2016)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Kathleen Marie Comfrey to RE−FILE Document 33 Declaration in Support of Motion, 32 FIRST MOTION to Dismiss the Amended Complaint. ERROR(S): No signtature or s/. (db) (Entered: 01/12/2016)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Kathleen Marie Comfrey to RE−FILE Document 34 Memorandum of Law in Support of Motion. ERROR(S):

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Document(s) Linked to Filing Error. (db) (Entered: 01/12/2016)
35 DECLARATION of Kathleen M. Comfrey in Support re: 32 FIRST MOTION to Dismiss the Amended Complaint.. Document filed by City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. (Attachments: # 1 Exhibit Amended Complaint, # 2 CBA Art. XXI)(Comfrey, Kathleen) (Entered: 01/12/2016)
36 MEMORANDUM OF LAW in Support re: 32 FIRST MOTION to Dismiss the Amended Complaint. . Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. (Comfrey, Kathleen) (Entered: 01/12/2016)
37 AFFIDAVIT of Emeka Nwokoro in Opposition re: 32 FIRST MOTION to Dismiss the Amended Complaint.. Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely. (Attachments: # 1 Exhibit Expert's Affidavit, # 2 Exhibit Expert's Affidavit)(Nwokoro, Chukwuemeka) (Entered: 01/20/2016)
38 MEMORANDUM OF LAW in Opposition re: 32 FIRST MOTION to Dismiss the Amended Complaint. . Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely. (Nwokoro, Chukwuemeka) (Entered: 01/20/2016)
39 AFFIRMATION of Emeka Nwokoro in Opposition re: 32 FIRST MOTION to Dismiss the Amended Complaint.. Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely. (Attachments: # 1 Exhibit Amended Complaint, # 2 Exhibit Expert's Affidavit, # 3 Exhibit Expert's Affidavit)(Nwokoro, Chukwuemeka) (Entered: 01/20/2016)
40 LETTER MOTION to Adjourn Conference addressed to Judge Laura Taylor Swain from Kathleen M. Comfrey dated January 26, 2016. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. Return Date set for 1/29/2016 at 11:15 AM.(Comfrey, Kathleen) (Entered: 01/26/2016)
41 ORDER granting 40 Letter Motion to Adjourn Conference: The conference is adjourned to June 24, 2016, at 10:00 AM and the related deadlines are modified accordingly. Initial Conference set for 6/24/2016 at 10:00 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 1/26/2016) (tn) (Entered: 01/26/2016)
Set/Reset Deadlines: Motions due by 1/27/2016. (tn) (Entered: 01/26/2016)
42 REPLY MEMORANDUM OF LAW in Support re: 32 FIRST MOTION to Dismiss the Amended Complaint. . Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. (Comfrey, Kathleen) (Entered: 01/27/2016)
43 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION Permission to brief additional grounds for motion to dismiss re: 39 Affirmation in Opposition to Motion, 36 Memorandum of Law in Support of Motion, 32 FIRST MOTION to Dismiss the Amended Complaint., 37 Affidavit in Opposition to Motion, 38 Memorandum of Law in Opposition to Motion, 35 Declaration in Support of Motion, . Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. (Attachments: # 1 Exhibit Birch decision)(Comfrey, Kathleen) Modified on 5/19/2016 (ldi). (Entered: 05/05/2016)

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44 ORDER granting 43 Motion to brief additional grounds for motion to dismiss. The parties are directed to submit a briefing schedule for the additional motion practice. DE # 43 resolved. (Signed by Judge Laura Taylor Swain on 5/6/2016) (mro) (Entered: 05/09/2016)
45 LETTER addressed to Judge Laura Taylor Swain from Kathleen M. Comfrey dated May 16, 2016 re: Schedule for filing supplemental briefs in connection with defendants' motion to dismiss the complaint. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Comfrey, Kathleen) (Entered: 05/16/2016)
46 LETTER addressed to Judge Laura Taylor Swain from Emeka Nwokoro dated May 17, 2016 re: Defendant's Supplemental Motion To Dismiss The Complaint. Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely.(Nwokoro, Chukwuemeka) (Entered: 05/17/2016)
47 MEMO ENDORSEMENT on re: 46 Letter regarding proposed briefing schedule, filed by Olayokun Olagoke, Julio Diaz, Widmarc Pierre, Roman Goris, Kareem Abdullah, Ritchie Baez, Derick Waller, Pedro Serrano, Sandy Gonzalez, Edreweene Raymond, Felicia Whitely, Adhyl Polanco. ENDORSEMENT: The foregoing scheduled (as modified) is approved. No affidavits or affirmations will be considered, as the motion must be directed to the sufficiency of the pleading. The parties must comply with the undersigned's Individual Practice Rule A2b before the motion is filed. (Motions due by 5/25/2016. Responses due by 7/20/2016, Replies due by 8/3/2016.) (Signed by Judge Laura Taylor Swain on 5/17/2016) (tro) (Entered: 05/17/2016)
48 AMENDED MOTION to Dismiss the Amended Complaint. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. Responses due by 7/20/2016(Comfrey, Kathleen) (Entered: 05/25/2016)
49 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 48 AMENDED MOTION to Dismiss the Amended Complaint. . Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. (Comfrey, Kathleen) (Entered: 05/25/2016)
50 THIRD LETTER MOTION to Adjourn Conference addressed to Judge Laura Taylor Swain from Kathleen M. Comfrey dated June 14, 2016. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill.(Comfrey, Kathleen) (Entered: 06/14/2016)
51 ORDER granting 50 THIRD LETTER MOTION to Adjourn Conference addressed to Judge Laura Taylor Swain from Kathleen M. Comfrey dated June 14, 2016. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill. The conference is adjourned to December 9, 2016, at 10:00 AM and the related deadlines are modified accordingly. DE #50 resolved. So ordered. (Initial Conference set for 12/9/2016 at 10:00 AM before Judge Laura Taylor Swain). (Signed by Judge Laura Taylor Swain on 6/15/2016) (rjm) (Entered: 06/15/2016)
Set/Reset Deadlines: Responses due by 8/3/2016. Replies due by 8/3/2016. (rjm) (Entered: 06/15/2016)
52 FILING ERROR − DUPLICATE DOCUMENT (SEE 53 Memorandum) − MEMORANDUM OF LAW in Opposition re: 48 AMENDED MOTION to Dismiss the Amended Complaint. . Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely.

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(Attachments: # 1 Exhibit)(Nwokoro, Chukwuemeka) Modified on 7/28/2016 (db). (Entered: 07/24/2016)
53 MEMORANDUM OF LAW in Opposition re: 48 AMENDED MOTION to Dismiss the Amended Complaint. . Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely. (Attachments: # 1 Exhibit)(Nwokoro, Chukwuemeka) (Entered: 07/24/2016)
54 LETTER MOTION for Extension of Time to File Reply Memorandum of Law addressed to Judge Laura Taylor Swain from Kathleen Comfrey dated 7/29/16. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Comfrey, Kathleen) (Entered: 07/29/2016)
55 ORDER granting 54 Letter Motion for Extension of Time. The extension is granted. No further extensions. DE # 54 resolved. (Signed by Judge Laura Taylor Swain on 8/1/2016) (cf) (Entered: 08/02/2016)
Set/Reset Deadlines: Replies due by 8/17/2016. (cf) (Entered: 08/02/2016)
56 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 48 AMENDED MOTION to Dismiss the Amended Complaint., 54 LETTER MOTION for Extension of Time to File Reply Memorandum of Law addressed to Judge Laura Taylor Swain from Kathleen Comfrey dated 7/29/16. . Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. (Attachments: # 1 Exhibit Letter to Plaintiffs' Counsel, # 2 Exhibit Email to Plaintiffs' Counsel)(Comfrey, Kathleen) (Entered: 08/16/2016)
57 LETTER MOTION to Adjourn Conference addressed to Judge Laura Taylor Swain from Kathleen M. Comfrey dated December 1, 2016. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Comfrey, Kathleen) (Entered: 12/01/2016)
58 JOINT PRELIMINARY PRETRIAL STATEMENT . Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Comfrey, Kathleen) (Entered: 12/02/2016)
59 ORDER granting 57 Letter Motion to Adjourn Conference. The conference is adjourned to April 21, 2017, at 10:00 AM and the related deadlines are modified accordingly. DE # 57 resolved. Initial Conference set for 4/21/2017 at 10:00 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 12/5/2016) (cf) (Entered: 12/06/2016)
60 MEMORANDUM OPINION AND ORDER: re: 48 AMENDED MOTION to Dismiss the Amended Complaint filed by Police Commissioner William J. Bratton, NYPD Commanding Officer of Patrol Services Carlos M Gomez, Mayor of the City of New York Bill deBlasio, New York City Police Department, NYPD Chief of Department James P. O'Neill, City of New York. For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint is granted. Plaintiffs may make a motion for leave to replead the claims and requests for relief asserted in their Second, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, and Seventeenth Causes of Action. Any such motion must be filed by March 27, 2017, and must be accompanied by a proposed Second Amended Complaint and a memorandum of law. Failure to make such a timely motion, or denial of the motion as futile, may result in dismissal of the Amended Complaint in its entirety, without further advance notice. This Memorandum Opinion and Order resolves Docket Entry Nos. 32 and 48. SO ORDERED., ( Motions due by 3/27/2017.) (Signed by Judge Laura Taylor Swain on 3/06/2017) (ama) (Entered: 03/06/2017)

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61 LETTER addressed to Judge Laura Taylor Swain from Chukwuemeka Nwokoro dated March 24, 2017 re: Extension of Time. Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely.(Nwokoro, Chukwuemeka) (Entered: 03/24/2017)
62 LETTER MOTION for Extension of Time addressed to Judge Laura Taylor Swain from Chukwuemeka Nwokoro dated March 24, 2017. Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely.(Nwokoro, Chukwuemeka) (Entered: 03/24/2017)
63 ORDER granting 62 Letter Motion for Extension of Time. The requested extension is Granted. DE # 62 resolved. SO ORDERED. Motions due by 4/10/2017. (Signed by Judge Laura Taylor Swain on 3/27/2017) (ama) (Entered: 03/27/2017)
64 MOTION for Leave to File Second Amended Complaint . Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely.(Nwokoro, Chukwuemeka) (Entered: 04/07/2017)
65 MEMORANDUM OF LAW in Support re: 64 MOTION for Leave to File Second Amended Complaint . . Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely. (Nwokoro, Chukwuemeka) (Entered: 04/07/2017)
66 DECLARATION of Emeka Nwokoro in Support re: 64 MOTION for Leave to File Second Amended Complaint .. Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely. (Attachments: # 1 Exhibit Proposed Second Amended Complaint)(Nwokoro, Chukwuemeka) (Entered: 04/07/2017)
67 LETTER MOTION for Extension of Time to File Response/Reply to Motion to File a Second Amended Complaint addressed to Judge Laura Taylor Swain from Kathleen M. Comfrey dated April 18, 2017. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Comfrey, Kathleen) (Entered: 04/18/2017)
68 LETTER MOTION to Adjourn Conference Scheduled for April 21, 2017 addressed to Judge Laura Taylor Swain from Kathleen M. Comfrey dated April 18, 2017. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Comfrey, Kathleen) (Entered: 04/18/2017)
69 ORDER: granting 67 Letter Motion for Extension of Time to File Response/Reply. The requested extension is granted. DE #67 resolved. Responses due by 5/5/2017 (Signed by Judge Laura Taylor Swain on 4/20/2017) (ap) (Entered: 04/20/2017)
70 ORDER: granting 68 Letter Motion to Adjourn Conference. The conference is adjourned to August 4, 2017, at 10:00 AM. DE #68 resolved. Initial Conference set for 8/4/2017 at 10:00 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 4/20/2017) (ap) (Entered: 04/20/2017)
71 DECLARATION of Kathleen M. Comfrey in Opposition re: 64 MOTION for Leave to File Second Amended Complaint .. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. (Attachments: # 1 Exhibit A)(Comfrey, Kathleen) (Entered: 05/05/2017)
72 MEMORANDUM OF LAW in Opposition re: 64 MOTION for Leave to File Second Amended Complaint . . Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez,

05/14/2017 07/25/2017 07/25/2017 07/26/2017
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New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. (Comfrey, Kathleen) (Entered: 05/05/2017)
73 REPLY MEMORANDUM OF LAW in Support re: 64 MOTION for Leave to File Second Amended Complaint . . Document filed by Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely. (Nwokoro, Chukwuemeka) (Entered: 05/14/2017)
74 NOTICE OF APPEARANCE by Yuval Rubinstein on behalf of Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. (Rubinstein, Yuval) (Entered: 07/25/2017)
75 CONSENT LETTER MOTION to Adjourn Conference Scheduled For August 4, 2017 at 10:00 am addressed to Judge Laura Taylor Swain from Yuval Rubinstein dated July 25, 2017. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Rubinstein, Yuval) (Entered: 07/25/2017)
76 ORDER granting 75 CONSENT LETTER MOTION to Adjourn Conference Scheduled For August 4, 2017 at 10:00 am addressed to Judge Laura Taylor Swain from Yuval Rubinstein dated July 25, 2017. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio. The conference is adjourned to October 13, 2017, at 10:30 AM and the related deadlines are modified accordingly. DE #75 resolved. So ordered. (Initial Conference set for 10/13/2017 at 10:30 AM before Judge Laura Taylor Swain). (Signed by Judge Laura Taylor Swain on 7/26/2017) (rjm) (Entered: 07/26/2017)
77 ORDER. In light of the pending motion, the pretrial conference scheduled for October 13, 2017, is rescheduled to January 19, 2018, at 10:45 a.m. in Courtroom 17C. So ordered. (Initial Conference set for 1/19/2018 at 10:45 AM in Courtroom 17C, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 10/6/2017) (rjm) (Entered: 10/06/2017)
78 CONSENT LETTER MOTION to Adjourn Conference Scheduled For January 19, 2018 addressed to Judge Laura Taylor Swain from Yuval Rubinstein dated January 12, 2018. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Rubinstein, Yuval) (Entered: 01/12/2018)
79 ORDER granting 78 Letter Motion to Adjourn Conference. The conference is adjourned to April 20, 2018, at 10:30 AM and the related deadlines are modified accordingly. DE # 78 resolved. SO ORDERED. Initial Conference set for 4/20/2018 at 10:30 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 1/16/2018) (ama) (Entered: 01/16/2018)
80 CONSENT LETTER MOTION to Adjourn Conference Scheduled For April 20, 2018 addressed to Judge Laura Taylor Swain from Yuval Rubinstein dated April 17, 2018. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, New York City Police Department, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Rubinstein, Yuval) (Entered: 04/17/2018)
81 ORDER: granting 80 Letter Motion to Adjourn Conference. The Conference is adjourned to June 1, 2018 at 10:30 AM and the related deadlines are modified accordingly. DE # 80 resolved. SO ORDERED. Initial Conference set for 6/1/2018 at 10:30 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 4/19/2018) (ama) (Entered: 04/19/2018)
82 NOTICE OF CHANGE OF ADDRESS by Chukwuemeka Nwokoro on behalf of Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano,

05/17/2018 05/23/2018 06/27/2018 06/27/2018
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Derick Waller, Felicia Whitely. New Address: Nwokoro & Scola, Esquires, 30 Broad Street, Suite 1424, New York, New York, 10004, (212) 785−1060. (Nwokoro, Chukwuemeka) (Entered: 05/05/2018)
83 CONSENT LETTER MOTION to Adjourn Conference Scheduled For June 1, 2018 addressed to Judge Laura Taylor Swain from Yuval Rubinstein dated May 17, 2018. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Commanding Officer of Patrol Services Carlos M Gomez, NYPD Chief of Department James P. O'Neill, Mayor of the City of New York Bill deBlasio.(Rubinstein, Yuval) (Entered: 05/17/2018)
84 ORDER granting 83 Letter Motion to Adjourn Conference. The conference is adjourned to July 10, 2018, at 2:15 pm and the related deadlines are modified accordingly. DE #83 resolved. Initial Conference set for 7/10/2018 at 02:15 PM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 5/23/2018) (ne) (Entered: 05/23/2018)
85 ORDER OF REFERENCE TO A MAGISTRATE JUDGE: Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Henry B. Pitman. SO ORDERED. Motions referred to Henry B. Pitman. (Signed by Judge Laura Taylor Swain on 6/27/2018) (ama) (Entered: 06/27/2018)
86 OPINION AND ORDER: re: 64 MOTION for Leave to File Second Amended Complaint filed by Olayokun Olagoke, Julio Diaz, Widmarc Pierre, Roman Goris, Kareem Abdullah, Ritchie Baez, Derick Waller, Pedro Serrano, Sandy Gonzalez, Edreweene Raymond, Felicia Whitely, Adhyl Polanco. For the foregoing reasons, Plaintiffs' motion for leave to file a Second Amended Complaint is granted as to Raymond's federal discrimination claims relating to his punishment for submitting a late vacation request and for failing to meet quotas, as against Proposed Individual Defendant Tsachas only; Gonzalez' and Baez' federal discrimination claims relating to negative performance evaluations and placement on PMP, as against Proposed Individual Defendant McCormack only; Serrano's federal discrimination claim relating to his negative 2012 performance rating, as against Proposed Individual Defendant McCormack only; and Gonzalez' and Serrano's claims of retaliation for complaining of discrimination, as against proposed Individual Defendant McCormack only. Plaintiffs' motion is also granted as to their NYSHRL and NYCHRL claims that parallel the federal claims that are permitted to be asserted in the Second Amended Complaint. Plaintiffs' motion for leave to file a further amended complaint with respect to First Amendment retaliation claims is granted as to Raymond's claim against Proposed Individual Defendant Tsachas based on the 2015 performance evaluation, promotion denial and punitive posting actions that followed the November 22, 2014, meeting with the Platoon Commander; Gonzalez' First Amendment retaliation claim, to the extent he alleges retaliatory conduct from May to November 2015, against the City and Proposed Individual Defendants McCormack, O'Neill and Bratton; and Serrano's First Amendment retaliation claim against Proposed Individual Defendant McCormack. The motion is denied as to the remainder of the Proposed SAC. Plaintiffs are directed to file a Proposed SAC consistent with this Opinion and Order no later than fourteen (14) days from the date of this Opinion and Order, or Wednesday, July 11, 2018. This case will be referred to the designated magistrate judge for general pretrial management, and Plaintiffs' counsel are directed to contact that judge's chambers promptly to schedule an initial conference. The July 10, 2018, pretrial conference is adjourned sine die in light of the referral. This Opinion and Order resolves Docket Entry No. 64. SO ORDERED.., ( Amended Pleadings due by 7/11/2018.) (Signed by Judge Laura Taylor Swain on 6/27/2018) (ama) (Entered: 06/27/2018)
87 SECOND AMENDED COMPLAINT amending 31 Amended Complaint,,, against Police Commissioner William J. Bratton, City of New York, NYPD Chief of Department James P. O'Neill, Christopher McCormack, Constantin Tsachas with JURY DEMAND.Document filed by Pedro Serrano, Sandy Gonzalez, Edreweene Raymond, Ritchie Baez. Related document: 31 Amended Complaint,,,.(Nwokoro, Chukwuemeka) (Entered: 07/11/2018)

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Set/Reset Hearings: Initial Pretrial Conference set for 8/7/2018 at 02:00 PM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B. Pitman. (ajc) (Entered: 07/13/2018)
88 ANSWER to 87 Amended Complaint,. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Chief of Department James P. O'Neill.(Rubinstein, Yuval) (Entered: 07/25/2018)
89 FILING ERROR − DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS PDF ERROR REQUEST FOR ISSUANCE OF SUMMONS as to Christopher McCormack, re: 87 Amended Complaint. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Nwokoro, Chukwuemeka) Modified on 8/6/2018 (sj). (Entered: 08/05/2018)
90 FILING ERROR − DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS PDF ERROR REQUEST FOR ISSUANCE OF SUMMONS as to Constantin Tsachas, re: 87 Amended Complaint. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Nwokoro, Chukwuemeka) Modified on 8/6/2018 (sj). (Entered: 08/05/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Chukwuemeka Nwokoro to RE−FILE Document No. 90 Request for Issuance of Summons, 89 Request for Issuance of Summons. The filing is deficient for the following reason(s): the PDF attached to the docket entry for the issuance of summons is not correct; Defendant's name must match exactly as it appears in the pleading caption. Re−file the document using the event type Request for Issuance of Summons found under the event list Service of Process − select the correct filer/filers − and attach the correct summons form PDF. (sj) (Entered: 08/06/2018)
91 REQUEST FOR ISSUANCE OF SUMMONS as to Christopher McCormack, re: 87 Amended Complaint,. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Nwokoro, Chukwuemeka) (Entered: 08/07/2018)
92 REQUEST FOR ISSUANCE OF SUMMONS as to Constantin Tsachas, re: 87 Amended Complaint,. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Nwokoro, Chukwuemeka) (Entered: 08/07/2018)
93 ELECTRONIC SUMMONS ISSUED as to Christopher McCormack. (vf) (Entered: 08/09/2018)
94 ELECTRONIC SUMMONS ISSUED as to Constantin Tsachas. (vf) (Entered: 08/09/2018)
95 SCHEDULING ORDER: Expert depositions due by 5/7/2019. Fact Discovery due by 2/7/2019. Status Conference set for 5/24/2019 at 10:00 AM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B. Pitman. Settlement Conference set for 5/13/2019 at 10:00 AM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B. Pitman. (Signed by Magistrate Judge Henry B. Pitman on 8/10/2018) (ne) (Entered: 08/10/2018)
96 CONSENT LETTER MOTION for Extension of Time to File Answer re: 87 Amended Complaint, for Defendant Constantin Tsachas addressed to Magistrate Judge Henry B. Pitman from Yuval Rubinstein dated September 13, 2018. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Chief of Department James P. O'Neill.(Rubinstein, Yuval) (Entered: 09/13/2018)
97 ORDER denying 96 Letter Motion for Extension of Time to Answer. APPLICATION DENIED. COUNSEL CANNOT SEEK RELIEF ON BEHALF OF PARTIES HE DOES NOT REPRESENT. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 9/14/2018) (ne) (Entered: 09/14/2018)
98 NOTICE OF APPEARANCE by Yuval Rubinstein on behalf of Constantin Tsachas. (Rubinstein, Yuval) (Entered: 09/18/2018)
99 ANSWER to 87 Amended Complaint,. Document filed by Constantin Tsachas.(Rubinstein, Yuval) (Entered: 09/18/2018)

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100 NOTICE OF APPEARANCE by John Andrew Scola, Jr on behalf of Kareem Abdullah, Ritchie Baez, Julio Diaz, Sandy Gonzalez, Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely. (Scola, John) (Entered: 11/27/2018)
101 CONSENT LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Henry B. Pitman from Yuval Rubinstein dated January 11, 2019. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Chief of Department James P. O'Neill, Constantin Tsachas, Mayor of the City of New York Bill deBlasio.(Rubinstein, Yuval) (Entered: 01/11/2019)
102 ORDER with respect to 101 Letter Motion for Extension of Time to Complete Discovery. COUNSEL IS DIRECTED TO SUBMIT A PROPOSED REVISED SCHEDULING ORDER. THIS ORDER DOES NOT EXTEND ANY DATES. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 1/14/2019) (ne) (Entered: 01/14/2019)
103 PROPOSED SCHEDULING ORDER. Document filed by Police Commissioner William J. Bratton, City of New York, Constantin Tsachas. (Rubinstein, Yuval) (Entered: 01/16/2019)
104 REVISED SCHEDULING ORDER granting 101 Letter Motion for Extension of Time to Complete Discovery. IT IS HEREBY ORDERED that: The deadline for the completion of fact discovery shall be extended to April 9, 2019. The deadline for plaintiffs' expert disclosures shall be extended to May 7, 2019. The deadline for defendants' expert disclosures shall be extended to June 4, 2019. The deadline for the conclusion of all expert depositions shall be extended to June 28, 2019. The settlement conference previously scheduled for May 13, 2019 will be adjourned to July 16, 2019 at 10:00 a.m. The status conference previously scheduled for May 24, 2019 will be adjourned to July 16, 2019 at 10:00 a.m. (Signed by Magistrate Judge Henry B. Pitman on 1/17/2019) (ne) (Entered: 01/17/2019)
Set/Reset Deadlines: (Fact Discovery due by 4/9/2019. Expert deposition due by 6/28/2019) Set/Reset Hearings: (Settlement Conference set for 7/16/2019 at 10:00 AM before Magistrate Judge Henry B. Pitman. Status Conference set for 7/16/2019 at 10:00 AM before Magistrate Judge Henry B. Pitman.) (ne) (Entered: 01/17/2019)
105 LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Henry B. Pitman from Chukwuemeka Nwokoro dated January 20, 2019. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Attachments: # 1 Exhibit Notice of Deposition, # 2 Exhibit Notice of Deposition, # 3 Exhibit Letter, # 4 Exhibit Letter, # 5 Exhibit Letter, # 6 Exhibit Letter)(Nwokoro, Chukwuemeka) (Entered: 01/21/2019)
106 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Henry B. Pitman from Yuval Rubinstein dated January 23, 2019 re: 105 LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Henry B. Pitman from Chukwuemeka Nwokoro dated January 20, 2019. . Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Chief of Department James P. O'Neill, Constantin Tsachas. (Attachments: # 1 Exhibit A)(Rubinstein, Yuval) (Entered: 01/23/2019)
Set/Reset Hearings: Telephone Conference set for 2/28/2019 at 05:00 PM before Magistrate Judge Henry B. Pitman. (ajc) (Entered: 01/24/2019)
107 PROPOSED PROTECTIVE ORDER. Document filed by Police Commissioner William J. Bratton, City of New York, NYPD Chief of Department James P. O'Neill, Constantin Tsachas. (Rubinstein, Yuval) (Entered: 01/24/2019)
108 MEMO ENDORSEMENT on re: 107 Proposed Protective Order filed by Police Commissioner William J. Bratton, Constantin Tsachas, NYPD Chief of Department James P. O'Neill, City of New York. ENDORSEMENT: The annexed proposed confidentiality order is not approved. The parties are directed to revise paragraph 7 of the annexed proposed order to conform to paragraph 5 of the Individual Practices of Judge Laura Taylor Swain. Judge Swain's individual rules of practice are available on the Court's web site. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 1/25/2019) Copies Transmitted By Chambers. (ne) (Entered: 01/25/2019)

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109 NOTICE OF APPEARANCE by Yuval Rubinstein on behalf of Christopher McCormack. (Rubinstein, Yuval) (Entered: 01/28/2019)
110 ANSWER to 87 Amended Complaint,. Document filed by Christopher McCormack.(Rubinstein, Yuval) (Entered: 01/28/2019)
Set/Reset Hearings: Discovery Hearing set for 2/12/2019 at 12:00 PM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B. Pitman. (ajc) (Entered: 01/29/2019)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 2/12/2019. (ajc) (Entered: 02/12/2019)
111 PROPOSED PROTECTIVE ORDER. Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas. (Rubinstein, Yuval) (Entered: 02/12/2019)
112 ORDER denying without prejudice to renewal 105 Letter Motion for Local Rule 37.2 Conference. All counsel are to review the current version of Rules 26, 33 and 34 of the Federal Rules of Civil Procedure. No later than February 19, 2019, defendants are to serve amended responses to plaintiffs' requests for documents that are fully compliant with Rule 34 of the Federal Rules of Civil Procedure. Plaintiffs' application to compel the depositions of William J. Bratton and James P. O'Neill is denied without prejudice to renewal. No later than March 14, 2019, plaintiffs are to file a status report stating whether they intend to renew their application to depose defendants William J. Bratton and James P. O'Neill. (Signed by Magistrate Judge Henry B. Pitman on 2/14/2019) Copies Transmitted By Chambers. (ne) (Entered: 02/14/2019)
113 STIPULATION AND CONFIDENTIALITY ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 2/14/2019) (ne) (Entered: 02/14/2019)
114 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Henry B. Pitman from Chukwuemeka Nwokoro dated March 14, 2019. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Attachments: # 1 Proposed Scheduling Order)(Nwokoro, Chukwuemeka) (Entered: 03/14/2019)
115 REVISED SCHEDULING ORDER granting 114 Letter Motion for Extension of Time to Complete Discovery. IT IS HEREBY ORDERED that: The deadline for completion of fact discovery is extended to June 9, 2019. The deadline for plaintiff's expert disclosures is extended to July 7, 2019. The deadline for defendant's expert disclosures is extended to August 4, 2019. The deadline for the conclusion of all expert depositions is extended to August 28, 2019. The settlement conference previously scheduled for July 16, 2019, is adjourned to 9−5−19 at 2:00 p.m. The status conference previously scheduled for July 16, 2019 is adjourned to 9−5−19 at 2:00 p.m. (Signed by Magistrate Judge Henry B. Pitman on 3/18/2019) (ne) (Entered: 03/18/2019)
Set/Reset Deadlines: (Deposition due by 8/28/2019. Fact Discovery due by 6/9/2019.) Set/Reset Hearings: (Settlement Conference set for 9/5/2019 at 02:00 PM before Magistrate Judge Henry B. Pitman. Status Conference set for 9/5/2019 at 02:00 PM before Magistrate Judge Henry B. Pitman.) (ne) (Entered: 03/18/2019)
116 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Henry B. Pitman from Chukwuemeka Nwokoro dated June 1, 2019. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Attachments: # 1 Text of Proposed Order)(Nwokoro, Chukwuemeka) (Entered: 06/02/2019)
117 LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Henry B. Pitman from Chukwuemeka Nwokoro dated June 1, 2019. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano.(Nwokoro, Chukwuemeka) (Entered: 06/02/2019)
Set/Reset Hearings: Discovery Hearing set for 6/20/2019 at 10:00 AM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Henry B.

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Pitman. (ajc) (Entered: 06/06/2019)
118 LETTER RESPONSE to Motion addressed to Magistrate Judge Henry B. Pitman from Yuval Rubinstein dated June 7, 2019 re: 117 LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Henry B. Pitman from Chukwuemeka Nwokoro dated June 1, 2019. . Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Rubinstein, Yuval) (Entered: 06/07/2019)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 6/13/2019. (ajc) (Entered: 06/13/2019)
119 LETTER addressed to Magistrate Judge Henry B. Pitman from Yuval Rubinstein dated June 17, 2019 re: Plaintiffs' Request to Question Witness About Communications With Defendants' Counsel. Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas.(Rubinstein, Yuval) (Entered: 06/17/2019)
120 FIRST LETTER addressed to Magistrate Judge Henry B. Pitman from John Scola dated June 19, 2019 re: Deposition Question and Attorney Client Privilege. Document filed by Roman Goris, Olayokun Olagoke, Widmarc Pierre, Adhyl Polanco, Edreweene Raymond, Pedro Serrano, Derick Waller, Felicia Whitely.(Scola, John) (Entered: 06/19/2019)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 6/20/2019. (ajc) (Entered: 06/20/2019)
121 ORDER; granting 116 Letter Motion for Extension of Time to Complete Discovery; terminating 117 Letter Motion for Local Rule 37.2 Conference. So Ordered.(Deposition due by 1/28/2020. Motions due by 7/22/2019.) (Signed by Magistrate Judge Henry B. Pitman on 6/21/2019) (js) (Entered: 06/21/2019)
Set/Reset Deadlines: (Fact Discovery due by 11/9/2019. Responses due by 8/12/2019, Replies due by 8/26/2019.). Set/Reset Hearings:(Status Conference set for 2/3/2020 at 10:00 AM before Magistrate Judge Henry B. Pitman.) (js) (Entered: 06/21/2019)
122 TRANSCRIPT of Proceedings re: Discovery Hearing held on 2/12/2019 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Mary Greco, (518) 581−8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/29/2019. Redacted Transcript Deadline set for 8/8/2019. Release of Transcript Restriction set for 10/7/2019.(aea) (Entered: 07/08/2019)
123 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Discovery Hearing proceeding held on 2/12/2019 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.(aea) (Entered: 07/08/2019)
124 TRANSCRIPT of Proceedings re: Discovery Hearing held on 6/20/2019 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/30/2019. Redacted Transcript Deadline set for 8/9/2019. Release of Transcript Restriction set for 10/7/2019.(aea) (Entered: 07/09/2019)
125 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Discovery Hearing proceeding held on 6/20/2019 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely

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electronically available to the public without redaction after 90 calendar days.(aea) (Entered: 07/09/2019)
126 MOTION to Compel William J. Bratton, James P. O'Neill to Appear For Depositions, and., MOTION for Sanctions For Spoliation. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano.(Nwokoro, Chukwuemeka) (Entered: 07/21/2019)
127 DECLARATION of John Scola in Support re: 126 MOTION to Compel William J. Bratton, James P. O'Neill to Appear For Depositions, and. MOTION for Sanctions For Spoliation.. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Attachments: # 1 Exhibit Deposition Transcript, # 2 Exhibit News Report, # 3 Exhibit NYPD Report, # 4 Exhibit NYPD Report, # 5 Exhibit Notice to Preserve Evidence, # 6 Exhibit Notice to Preserve Evidence, # 7 Exhibit Discovery Demand, # 8 Exhibit Deposition Notice, # 9 Exhibit Court Order, # 10 Exhibit Discovery Response, # 11 Exhibit Email, # 12 Exhibit Discovery Demand)(Nwokoro, Chukwuemeka) (Entered: 07/21/2019)
128 DECLARATION of Pedro Serrano in Support re: 126 MOTION to Compel William J. Bratton, James P. O'Neill to Appear For Depositions, and. MOTION for Sanctions For Spoliation.. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Nwokoro, Chukwuemeka) (Entered: 07/21/2019)
129 MEMORANDUM OF LAW in Support re: 126 MOTION to Compel William J. Bratton, James P. O'Neill to Appear For Depositions, and. MOTION for Sanctions For Spoliation. . Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Nwokoro, Chukwuemeka) (Entered: 07/21/2019)
130 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 126 MOTION to Compel William J. Bratton, James P. O'Neill to Appear For Depositions, and. MOTION for Sanctions For Spoliation. addressed to Magistrate Judge Henry B. Pitman from Yuval Rubinstein dated August 7, 2019. Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas.(Rubinstein, Yuval) (Entered: 08/07/2019)
131 ORDER granting 130 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 126 MOTION to Compel William J. Bratton, James P. O'Neill to Appear For Depositions, and. MOTION for Sanctions For Spoliation. addressed to Magistrate Judge Henry B. Pitman from Yuval Rubinstein dated August 7, 2019. Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas. The schedule proposed herein is approved. So ordered. (Responses due by 8/19/2019. Replies due by 9/3/2019). (Signed by Magistrate Judge Henry B. Pitman on 8/8/2019) (rjm) (Entered: 08/08/2019)
132 MEMORANDUM OF LAW in Opposition re: 126 MOTION to Compel William J. Bratton, James P. O'Neill to Appear For Depositions, and. MOTION for Sanctions For Spoliation. . Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas. (Rubinstein, Yuval) (Entered: 08/19/2019)
133 DECLARATION of Yuval Rubinstein in Opposition re: 126 MOTION to Compel William J. Bratton, James P. O'Neill to Appear For Depositions, and. MOTION for Sanctions For Spoliation.. Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Rubinstein, Yuval) (Entered: 08/19/2019)
134 JOINT LETTER MOTION to Adjourn Conference Scheduled For September 5, 2019 addressed to Magistrate Judge Henry B. Pitman from Yuval Rubinstein dated August 29, 2019. Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas.(Rubinstein, Yuval) (Entered: 08/29/2019)
135 ORDER: granting 134 Letter Motion to Adjourn Conference. Application granted. Because I am retiring effective September 30, 2019, counsel are directed to contact the

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Magistrate Judge to whom this matter will be reassigned no later tan October 15, 2019 to schedule a date for the settlement conference. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 8/30/2019) Copies transmitted By Chambers. (ama) (Entered: 08/30/2019)
136 REPLY MEMORANDUM OF LAW in Support re: 126 MOTION to Compel William J. Bratton, James P. O'Neill to Appear For Depositions, and. MOTION for Sanctions For Spoliation. . Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Nwokoro, Chukwuemeka) (Entered: 09/03/2019)
Magistrate Judge Sarah L. Cave is so redesignated. (ad) (Entered: 10/02/2019)
NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Sarah L. Cave, for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Magistrate Judge Henry B. Pitman no longer referred to the case. Motions referred to Sarah L. Cave. (ad) (Entered: 10/02/2019)
137 SCHEDULING ORDER: The referral in this action has been reassigned to the undersigned (ECF Oct. 2, 2019). A Status Conference will be held in this matter on Wednesday, February 5, 2020, at 10:00 a.m. in Courtroom 18A, Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York 10007. SO ORDERED. (Status Conference set for 2/5/2020 at 10:00 AM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before US Magistrate Judge Sarah L Cave.) (Signed by US Magistrate Judge Sarah L Cave on 10/10/19) (yv) (Entered: 10/10/2019)
138 SCHEDULING ORDER: As a correction to ECF No. 137, the Status Conference will be held on Monday, February 3, 2020, at 10:00 a.m. in Courtroom 18A, Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York 10007. SO ORDERED. (Signed by US Magistrate Judge Sarah L Cave on 10/11/2019) Status Conference set for 2/3/2020 at 10:00 AM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before US Magistrate Judge Sarah L Cave. (ks) (Entered: 10/11/2019)
139 SCHEDULING ORDER: Magistrate Judge Henry B. Pitman ordered the parties to contact the undersigned, no later than October 15, 2019, to schedule a settlement conference. (ECF No. 135.) The parties failed to do so. The parties are ORDERED to file a joint status report by Wednesday, October 23, 2019 explaining the failure to comply with ECF No. 135, and listing available dates for a settlement conference. The dates must be on a Tuesday, Wednesday, or Thursday and for a three−hour block beginning at 10:00 am or 2:00 pm. (Signed by US Magistrate Judge Sarah L Cave on 10/16/2019) (mml) (Entered: 10/16/2019)
140 STATUS REPORT. Concerning Settlement Conference Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas.(Rubinstein, Yuval) (Entered: 10/17/2019)
141 SETTLEMENT CONFERENCE SCHEDULING ORDER: A settlement conference is scheduled for Wednesday, December 4, 2019 at 10:00 am in Courtroom 18A, 500 Pearl Street, New York, New York. The parties are directed to review and comply with the Procedures for Cases Referred for Settlement to Magistrate Judge Sarah L. Cave, a copy of which is available on the Court's website at http://www.nysd.uscourts.gov/judge/Cave. The parties are strongly encouraged to engage in goodfaith settlement negotiations before the settlement conference and preferably before the submission to the Court of the Ex Parte Settlement Letters and Acknowledgment Forms, which are to be submitted by Wednesday, November 27, 2019. Should the parties resolve the litigation before the conference date, they must notify the Court in writing immediately. SO ORDERED. (Signed by US Magistrate Judge Sarah L Cave on 10/18/2019) Settlement Conference set for 12/4/2019 at 10:00 AM in Courtroom 18A, 500 Pearl Street, New York, NY 10007 before US Magistrate Judge Sarah L Cave. (ks) (Entered: 10/18/2019)
142 LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Sarah L. Cave from Emeka Nwokoro dated November 6, 2019.

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Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Attachments: # 1 Exhibit Letter, # 2 Exhibit Letter)(Nwokoro, Chukwuemeka) (Entered: 11/06/2019)
143 SCHEDULING ORDER: A Telephone Conference will be held in this matter on Tuesday, November 19, 2019, at 2:30 pm, regarding the parties' discovery disputes. Chambers will contact counsel for the parties to provide dial in information. SO ORDERED. (Telephone Conference set for 11/19/2019 at 02:30 PM before US Magistrate Judge Sarah L Cave.) (Signed by US Magistrate Judge Sarah L Cave on 11/7/19) (yv) (Entered: 11/07/2019)
144 REVISED SCHEDULING ORDER granting 142 Letter Motion for Extension of Time to Complete Discovery. Plaintiffs' Letter−Motion for an extension of time to complete discovery (ECF No. 142) is granted. The Clerk of Court is respectfully directed to close ECF No. 142. SO ORDERED. (Deposition due by 3/28/2020.) (Signed by US Magistrate Judge Sarah L Cave on 11/7/19) (yv) (Entered: 11/07/2019)
Set/Reset Deadlines: Fact Discovery due by 1/10/2020. (yv) (Entered: 11/07/2019)
145 LETTER MOTION to Reopen re: 144 Order on Motion for Extension of Time to Complete Discovery, addressed to Magistrate Judge Sarah L. Cave from Yuval Rubinstein dated November 8, 2019. Document filed by Police Commissioner William J. Bratton, City of New York, Christopher McCormack, NYPD Chief of Department James P. O'Neill, Constantin Tsachas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Rubinstein, Yuval) (Entered: 11/08/2019)
146 LETTER RESPONSE in Opposition to Motion addressed to Magistrate Judge Sarah L. Cave from Emeka Nwokoro dated November 10, 2019 re: 145 LETTER MOTION to Reopen re: 144 Order on Motion for Extension of Time to Complete Discovery, addressed to Magistrate Judge Sarah L. Cave from Yuval Rubinstein dated November 8, 2019. . Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Attachments: # 1 Exhibit Emails, # 2 Exhibit Discovery Response, # 3 Exhibit Transcript, # 4 Exhibit Emails, # 5 Exhibit Emails, # 6 Exhibit Letter)(Nwokoro, Chukwuemeka) (Entered: 11/10/2019)
147 SCHEDULING ORDER denying 145 LETTER MOTION to Reopen re: 144 Order on Motion for Extension of Time to Complete Discovery. Defendants' Letter−Motion to reopen the Courts decision to grant an extension of time to complete discovery (ECF No. 145) is DENIED. The Telephone Conference scheduled for Tuesday, November 19, 2019 is adjourned to Monday, November 25, 2019 at 2:00 pm. The parties are directed to meet and confer regarding their discovery disputes and, by Wednesday, November 20, 2019, file a joint status report listing each dispute that they are unable to resolve, with their respective positions. The status report should be no more than five pages. The Court acknowledges that Plaintiffs' Motion to Compel and for Sanctions (ECF No. 126) is fully briefed and pending before the Court. On November 25, 2019 at 2:00pm, Plaintiffs counsel is directed to call Chambers at (212) 805−0214 with all parties on the line. All counsel who intend to speak during the call must use a landline or phone with equivalent quality. Upon receipt of this order, each party is directed to ensure that all other parties on the case are aware of the conference date and time. The Clerk of Court is respectfully directed to close ECF No. 145. SO ORDERED. (Signed by Magistrate Judge Sarah L Cave on 11/14/2019) (jca) (Entered: 11/14/2019)
Set/Reset Hearings: Telephone Conference set for 11/25/2019 at 02:00 PM before Magistrate Judge Sarah L Cave. (jca) (Entered: 11/14/2019)
148 LETTER addressed to Magistrate Judge Sarah L. Cave from Emeka Nwokoro dated November 20, 2019 re: Joint Status Report. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Attachments: # 1 Exhibit Emails/Letter)(Nwokoro, Chukwuemeka) (Entered: 11/20/2019)
Minute Entry for proceedings held before Magistrate Judge Sarah L Cave: Telephone Conference held on 11/25/2019. Attorney Chukwuemeka Nwokoro appeared on behalf of Plaintiffs. Attorney Yuval Rubinstein appeared on behalf of Defendants. Attorney Rubinstein's colleague, Peter Tsai from the New York City Law Department, also attended the conference. (ne) (Entered: 11/25/2019)

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149 ORDER: Regarding Plaintiffs' request for emails, Defendants' counsel is directed to email Plaintiffs' counsel a list of the search terms, date ranges, and custodians used in their search. Plaintiffs' request is otherwise denied. (As further set forth in this Order.) Based on Defendants' representation that the CPI does not contain information relating to discrimination based on race or national origin, the Court sustains Defendants' objection to Request No. 25, and DENIES Plaintiffs' motion to compel as to Request No. 25. (Signed by Magistrate Judge Sarah L Cave on 11/25/2019) (cf) (Entered: 11/25/2019)
150 FIRST LETTER MOTION for Leave to File Amend Motion for Sanctions or New Motion for Sanctions Against all Defendants addressed to Magistrate Judge Sarah L. Cave from John Scola dated December 2, 2019. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit)(Scola, John) (Entered: 12/02/2019)
151 FIRST LETTER MOTION for Discovery addressed to Magistrate Judge Sarah L. Cave from John Scola dated 12/2/19., FIRST LETTER MOTION to Compel All Defendants to Comply with 6−20−19 Order addressed to Magistrate Judge Sarah L. Cave from John Scola dated 12/2/19. Document filed by Ritchie Baez, Sandy Gonzalez, Edreweene Raymond, Pedro Serrano. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Scola, John) (Entered: 12/02/2019)
152 ORDER: Accordingly, Plaintiffs' Letter−Motion to file a new motion for sanctions (ECF No. 150) is granted; Letter−Motion for a discovery conference (ECF No. 151) is denied; and Letter−Motion to compel and for sanctions (ECF No. 126) is terminated as moot. All discovery deadlines are adjourned sine die. So Ordered. The Clerk is respectfully directed to close ECF Nos. 126, 150, and 151. denying as moot 126 Motion to Compel; denying as moot 126 Motion for Sanctions; granting 150 Letter Motion for Leave to File Document; denying 151 Letter Motion for Discovery; denying 151 Letter Motion to Compel. (Signed by Magistrate Judge Sarah L Cave on 12/3/2019) (js) (Main Document 152 replaced on 12/3/2019) (js). (Entered: 12/03/2019)
Set/Reset Deadlines: Motions due by 12/13/2019. Responses due by 12/30/2019 Replies due by 1/7/2020. (js) (Entered: 12/03/2019)
Minute Entry for proceedings held before Magistrate Judge Sarah L Cave: Settlement Conference held on 12/4/2019. Attorney John Scola appeared on behalf of Plaintiffs. Attorney Yuval Rubenstein appeared on behalf of Defendants. Plaintiffs Edreweene Raymond, Ritchie Baez, Pedro Serrano, and Sandy Gonzalez attended the conference. Attorneys David G. Goldfarb and Stephanie Stewart from the NYPD Legal Bureau also attended the conference. The parties did not settle. (ne) (Entered: 12/04/2019)