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New York Appellate Division Revives Gay Police Officer’s Discrimination & Retaliation Case Against NYPD

Posted on: February 4th, 2018 by Art Leonard No Comments

While hesitant to accuse the New York City Police Department, New York City Law Department, and a Supreme Court Justice of bizarre thinking, that is the only conclusion we can draw from Harrington v. City of New York, 2018 WL 503144, 2018 N.Y. App. Div. LEXIS 392 (N.Y. App. Div., 1st Dept., Jan. 23, 2018), where a unanimous five-judge panel of the Manhattan-based Appellate Division, 1st Department, reversed a decision by Justice James E. d’Auguste from October 13, 2016, in which he reiterated a prior decision entered on November 12, 2015, to dismiss sexual orientation discrimination and retaliation claims by Michael Harrington, a former NYPD auxiliary police officer.

Harrington worked as an auxiliary police officer from 2002 until 2009, then resigned to take a police officer position in California. Evidently unhappy away from NYC, he sought to be reinstated as a police officer with NYPD in June 2009, passing a psychological exam. After his request for reinstatement was denied, he filed a new application, passing the written exam in 2010.  While his application was pending, he accepted law enforcement positions with sheriff’s departments in Arizona and Missouri, passing a psychological evaluation for both of those positions.  In September 2013, he began working as a corrections officer for the NYC Department of Correction, passing yet another psych evaluation, and he continues to serve in that position while pursuing his goal of joining the NYPD.

While employed as an auxiliary, he filed a sexual orientation discrimination complaint with the Department in 2007, which was eventually settled at the end of 2013 with a payment to him of $185,000. Assuming the City does not throw large sums of money at discrimination grievances if it believes there is no merit to their claims, one can reasonably infer that he had a decent case.  After he had signed the settlement agreement and waiver of claims on December 12, 2013, he was instructed to proceed with his then-pending 2010 application to join the NYPD, submitted to another psychological evaluation, and waited.

He was told that his application was “being held on a psychological review” which lasted more than a year. Finally, he was told that the NYPD found him not psychologically fit to be a police officer, based on the police psychologist’s conclusion that he “relied chiefly on litigation to resolve issues,” citing his 2007 discrimination claim as evidence of his “poor stress tolerance.”  Evidently, in the opinion of this psychologist, implicitly adopted by the Department, police officers who complain about discrimination against them have “poor stress tolerance” and if they pursue their claims in a legal forum, that indicates psychological unfitness to be a cop.  Stated otherwise, the unwritten policy of the NYPD is that police officers who encounter discrimination in the Department should just suck it up, and those who don’t are unfit for the force.  Wow!

Harrington got an independent psychologist to do an evaluation, and this produced the same result as the numerous other evaluations he has gone through, finding him fit to be a police officer. He also found evidence that the Department’s psychologist had omitted from his report the data showing that Harrington “met or exceeded requirements in every area of the ‘Job Suitability Snapshot,’” and omitted the psychologist’s own notes showing that Harrington’s “thought processes were ‘coherent’” and within normal limits.  His internal appeal of this rejection of his application was turned down and he filed this lawsuit, seeking damages and an order that the NYPD hire him.

Justice d’Auguste granted a motion to dismiss Harrington’s sexual orientation discrimination and retaliation claims. Reversing the trial judge, the Appellate Division panel (Justices Gische, Webber, Oing, Singh, and Moulton) concluded that his factual allegations were, rather obviously, sufficient to state claims for discrimination and retaliation.  After reciting the factual allegations now on the record, the court said that “the foregoing, taken together, and affording plaintiff the benefit of every favorable inference, establishes prima facie that defendants discriminated against plaintiff on account of his sexual orientation in finding him psychologically unfit to serve.”

It was also clear that the basis for the NYPD’s action was sufficient to ground a retaliation claim. “Plaintiff alleges that in retaliation for his having commenced the 2007 action against defendants, they placed a psychological hold on his present application for employment in 2014, and ultimately found him psychologically unfit for the position.”  After finding that the settlement agreement he had signed in 2013 did not bar the present action, because the release he signed applied only to claims arising up to that time, the court stated the obvious: “In finding plaintiff psychologically unfit, defendants’ police psychologist relied on plaintiff’s 2007 action against defendants.  Specifically, the police psychologist’s report stated that plaintiff had ‘poor stress tolerance’ and relied ‘chiefly on litigation to resolve issues.’  The 2007 litigation serving as the psychological disqualifier is sufficient to plead the causal connection between the protected activity and the adverse action in this case.”

The court rejected the defendants’ disingenuous argument that the 2007 action was “not sufficiently temporally proximate to the alleged adverse action to support the causal connection” for a retaliation claim. “Plaintiffs’ allegations are sufficient to permit the inference that the reason plaintiff was found psychologically unfit to serve was because he brought the 2007 action against defendants.  This, along with the extensive history of having been found psychologically fit to serve as a police officer and in similar positions, supports an inference that the disqualification was retaliation for bringing the 2007 action.”  Time for a new settlement offer from the City Law Department?

Harrington is represented by Naved Amed of Amed Marzano & Sediva PLLC.