Full opinion text
MEMORANDUM & ORDER DOLINGER, United States Magistrate Judge. Plaintiff Paula White-Ruiz has been a police officer in the New York Poliee Department for the past ten years. In October 1993 she filed this action tinder 42 U.S.C. § 1983, claiming that various officers and officials of the New York City Police Department have engaged in a course of harassment against her in retaliation for her having disclosed an instance of corrupt behavior by one of her fellow officers. Based on these allegations, she asserts that the defendants, including the City of New York, should be held liable to her for violation of her First Amendment right to speak freely. I have now conducted á bench trial of this case, extending over five and one-half trial days. Based on the evidence at trial, I find that, starting in 1988, plaintiff did in fact suffer from some forms of retaliation by unidentified poliee officers for having reported to appropriate Police Department officials a corrupt act by a fellow officer in 1988. I also conclude that the City of New York, through the actions or inactions of senior Poliee Department officials, bears legal responsibility for the proven misconduct of plaintiff’s fellow officers. In addition, I find that the retaliation in question and the Poliee Department’s manifested indifference to the plaintiffs vulnerability caused her injury in the form of emotional distress. . The foregoing findings do not, by themselves, suffice to establish the liability of any of the defendants. Defendants have belatedly invoked a statute-of-limitations defense to limit the scope of plaintiff’s viable claims for discrete acts of retaliation. For reasons to be noted, however, I conclude that plaintiff’s claims are not time-barred. As noted, plaintiff seeks damages from various police officials and from the City. I conclude that plaintiff has failed.to demonstrate that most of the named individual defendants participated in, encouraged or were otherwise responsible for the proven acts of retaliation. She has shown, however, that two of these defendants bear some legal responsibility for a portion of the proven misconduct. Moreover, she has established that the violation of her First Amendment rights is attributable to a practice or custom endorsed or acquiesced in by the responsible policymakers for the Poliee Department, and that the City is therefore liable for the proven violations of her constitutional rights. Given these limitations, I conclude that judgment should be entered in favor of plaintiff and against the City of New York in the amount of $90,000.00, and that defendants Sergeant James McDermott and Inspector Albert Girimonte should be held jointly and severally hable with the City in the amounts of $5,000.00 and $10,000.00, respectively, each representing a portion of the damages assessed against the City. I further hold that judgment should be entered for the other defendants dismissing the complaint. A. The Facts Plaintiff began her service with the New York City Police Department in January 1987, when she entered the Police Academy. She matriculated in the Academy for six months and was then assigned to Neighborhood Stabilization Unit (“NSU”) Squad 14 in north Brooklyn. During orientation by the Department’s Internal Affairs Division (“IAD”) when plaintiff was starting her tour with the NSU, she was instructed that she should report instances of misconduct by her fellow officers. The IAD instructors also informed plaintiff and the other new recruits that if they reported corruption by other officers, their communications would be treated confidentially. . On January 28,1988, plaintiff was assigned to work with an Officer John Ward in the 66th Precinct. During the course of their patrol that day, they were required to guard the body of a deceased man in an apartment. As a result of certain actions taken by Officer Ward at the time, plaintiff came to suspect that her patrol partner had appropriated some money that he had found in the pockets of the decedent, and she reported her observations to the supervising officer who later came to the scene. Her report led to one or more interrogations of Officer Ward, who was placed the same day on modified duty, presumably because of suspicion of wrongdoing. . The Department subsequently dismissed Ward, apparently for the misconduct reported by plaintiff. Within one day after the incident, an account of the event had been placed on the Department’s internal teletype system. The report contained specific references to plaintiff, by name, and identified her as the source of information that had led to Officer Ward’s changed status. This message was distributed or accessible to all precincts within the Department. That disclosure was inconsistent with the assurances of confidentiality that plaintiff had previously received from the IAD. Plaintiff reports, credibly and without contradiction, that her fellow officers at the 66th Precinct almost immediately began to shun her, that someone slashed her .automobile tires and that the Commanding Officer of the precinct, a Captain Scagnelli, later advised her that she should consider a transfer to another precinct. Explaining this advice, the Commander told plaintiff that he was being reassigned and thus could not protect her in the future from possible retaliation for her actions in reporting officer Ward. In view of the evident hostility of her fellow officers and the vandalism, plaintiff agreed to a transfer, and On February 4, 1988 she was reassigned to the 90th Precinct. Plaintiff testified, again credibly and without contradiction, that upon her arrival at her new precinct, she encountered evidence of hostility to her from some of her fellow officers and superiors. Thus, on her first day at the precinct she found the words “Black Bitch” scrawled on her locker, and one or more officers told her that they had been aware of her impending arrival, apparently through a departmental grapevine that had identified her as a “rat”, or informer. In addition, when she met with the then-assigned precinct commander, a Captain Courtney, he warned her that she should not report what he apparently viewed as minor misconduct, such as officers accepting free services from local retailers. The clear implication of his comment was that her prior history had led both rank-and-file officers and the higher brass in the precinct to view her with suspicion and some hostility. Because plaintiff, was pregnant, she soon was reassigned to the District Attorney’s office so that she could perform limited duties. She remained there until October 1988, when she returned to the 90th Precinct. According to plaintiff, from the time when she was reassigned to, the 90th Precinct in October 1988 until the present, she has been subjected to an unrelenting campaign of harassment by fellow officers and supervisors, presumably in retaliation for her having disclosed Officer Ward’s misconduct. She further complains that the Department has shut its institutional ears to her complaints of mistreatment and has indeed encouraged or at least plainly acquiesced in the very misconduct about which she has complained. I address each of these allegations separately, finding that plaintiff has sustained a number of her charges,- although some of her allegations are neither supported by evidence nor inherently credible. In reaching these conclusions, I find no reason to believe that plaintiff has intentionally misstated the facts. To the extent that some of her assertions are not borne out by the record, I infer that, .having unquestionably been exposed to a very lengthy and harsh campaign of threats, vandalism, non-cooperation and isolation by some of her fellow officers and disdain from her supervisors, plaintiff has been attuned to view other people’s motives in the harshest possible light and to recall details from the relatively distant past in a particularly negative vein. 1. Experiences at the 66th Precinct Plaintiff testified without contradiction that the disclosure of her role in the Officer Ward incident immediately triggered a wave of expressed hostility and harassment directed against her in the days after the incident. I credit her testimony that her fellow officers in the 66th Precinct were open in their expressions of anger and suspicion and that she suffered the vandalism of her automobile. Moreover, I further credit her unrebutted testimony that the precinct commander was sufficiently aware of the situation that he advised her by early February 1988 to transfer to another precinct in view of his own impending departure from the 66th Precinct. The balance of my findings concern plaintiff’s experiences after her transfer in February 1988 to the 90th Precinct. I start by addressing discrete incidents to which plaintiff testified and then consider certain conditions alluded to by plaintiff that were of a more continuing and long-term nature. 2. Interference with Radio Communications and Radioed Name-Calling Plaintiff asserts that on a number of occasions when she was on patrol, she attempted to communicate by radio with headquarters and was prevented from doing so by the deliberate interference of one or more fellow officers. Plaintiff explains that this was accomplished by the officers “keying down” on their own radios at the same time and on the same frequencies, thus frustrating her ability to communicate with the precinct. Although plaintiff suggested at one point in her testimony that this had happened frequently, when examined in more detail she asserted that it had occurred once in early 1988, when she was still at the 66th Precinct, then twice during her patrol on the evening of December 19, 1988 and finally several times in 1989 and 1990. The corroborating evidence, in the form of a Department investigatory memorandum, refers, inter alia, to a series of incidents on December 19, 1988. The report, which was triggered by a complaint lodged by plaintiff, contains an excerpt from radio communications of that night, and it indicates that one or more officers apparently interfered repeatedly with plaintiff’s transmissions that evening. (PX 65; see also PX 80). Plaintiff offered no independent evidence of other incidents of this sort, and I find that her general allusion to the asserted repetition of this type of event is not credible. Certainly at that period she was prepared to press grievances within the Department, and if she had done so in these instances, I would expect to find some indication of a complaint. Plaintiff conceded that she had not brought any other such incident to the attention of the Department, and I infer that her reticence is attributable to the absence of such a triggering event. Further support for this conclusion is the lack of any specificity in plaintiff’s testimony about such other asserted incidents, which is quite inconsistent with her demonstrated ability to recount instances of harassment in considerable detail. In a related vein, plaintiff credibly testified that on one occasion, on November 5, 1988, she heard one officer call her a “rat” and a “cheese eater” on her ear radio. (PX 80). Indeed, these remarks were recorded by a Department tape recording system and were transcribed as part of a Departmental investigation of this and other incidents reported by plaintiff. (PX 76). Plaintiff identified the responsible individual at trial as an Officer McGrory, who was assigned at the time to the 90th Precinct, although she did not name him as a defendant in this case. This incident was confirmed by a Department investigation, although the investigators concluded that they could not identify the responsible officer. (PX 77). They also failed to advise plaintiff about the outcome of their investigation despite her repeated inquiries. 3. Refusal to Provide Back-Up Plaintiff testified that on the same evening as the keying-down incidents in December 1988, she approached a vehicle in which several males were riding who appeared to be potentially dangerous. According to plaintiff, she requested assistance from fellow officers, but all of the officers reached by radio declined to come to her assistance, thus subjecting her to danger from the automobile occupants. Plaintiff reported that she was ultimately assisted by a Housing Authority patrolman, although no arrests eventuated from this encounter. Apart from plaintiff’s testimony about this incident, the only evidence concerning the pertinent details is a report of investigation which describes a series of interviews of some of the officers who were on patrol that evening and summarizes certain findings from a review of radio transmissions. (PX 80). From this congeries of evidence — including plaintiffs account — I am inclined to conclude that what occurred represented willful non-cooperation with plaintiff by some of her fellow officers, although it is not at all clear that the non-cooperation took the form of an outright refusal to come to her assistance. It appears that one officer failed to come because he was assigned to a fuel spill. Whether anyone else was asked to come is not clear. Nonetheless, the report confirms that at one point plaintiff asked for a check of a vehicle identification number and that the officer with the computer used for this purpose falsely told her that he had found no match when in fact he never ran the number through his computer. It is also clear that throughout several encounters that plaintiff had that evening with other vehicles, one or more officers repeatedly and deliberately interfered with her radio transmissions, with the evident goal of disrupting her -ability to perform her work on her patrol. (PX 80). In short, there is no real question that on that occasion officers were intent on preventing her from carrying out her responsibilities, irrespective of whether this behavior' endangered her safety or that of the public. I view this conduct as probably a reflection of a prevalent attitude within the precinct at the time that she was to be isolated and, in effect, punished for her conduct with regard to Officer Ward, even if this approach endangered her physical safety. I also credit her unrebutted testimony that the Department investigators never disclosed the results of the investigation to her, and that this incident and the unresponsiveness of the investigators triggered considerable distress on her part because she- felt both isolated and extremely vulnerable when patrolling high-crime neighborhoods without any assurance that her fellow officers would come to her assistance in time of need. Notwithstanding this conclusion, I note that plaintiff cites no other comparable incident. That being the ease, I infer that this particular source of insecurity diminished over time. 4. Anonymous Letter Plaintiff reports that sometime in June 1989 she received in the mail at her home an envelope containing a . copy of a Police Department memorandum announcing the discharge of Officer Ward. This document was not accompanied by any other form of communication or any identification of the sender. Since each officer’s home address was required to be kept confidential by the Department, plaintiff suggests that the sending of this letter reflected not only a desire to retaliate on the part of the sender — presumably a fellow officer — but also the cooperation of others at the precinct, who were willing to go so far as to breach security. I view plaintiffs testimony on this matter as believable, particularly given the proffer of the document and envelope and plaintiffs prompt complaint to the Department. She reported the incident to the IAD, and the Department investigated but was unable to identify the responsible party. (PXs 69, 72-74, 80). It also never advised plaintiff of the outcome of the inquiry. 5. Anonymous Calls At Home Plaintiff testified that during late 1988 she received a series of harassing telephone calls at home, and complained to the Department. She offered very little information as to what, if anything, was said during these calls or as to their frequency, and provided no specific basis for her assumption that fellow officers at the precinct were responsible. In any event, the Department provided her with a tape machine to record any such calls, and once she installed the tape recorder the calls stopped. Given the paucity of detail offered by plaintiff, I am not prepared to assume that the calls were triggered by her reporting of Officer Ward. If plaintiff had described what occurred during the calls, whether comments by the caller or stony silence, I might be in a better position to make a judgment on the matter, but in the absence of obviously pertinent information, I deem this allegation to be unproven. 6. The Dead Rat According to plaintiff, sometime in 1990 she discovered a dead rat lying on the street immediately adjacent to her ear. She attributes this to unidentified fellow officers, although she did not lodge a complaint with her precinct. Given the specificity of her testimony and its similarity to practices observed by the so-called Mollen Commission in its subsequent report on patterns of harassment within the Department, (see PX 61 — COMMITTEE TO INVESTIGATE ALLEGATIONS OF CORRUPTION AND THE ANTI-CORRUPTION PROCEDURES OF THE POLICE DEPARTMENT, COMMISSION REPORT: ANATOMY OF FAILURE: A PATH FOR SUCCESS, at 51-60 (July 7, 1994) (“Report”)), I credit this account. 7.Paint Scratches Plaintiff testified that on several occasions in 1991, she found new scratches on the body of her ear. She speculated that these instances of vandalism were attributable to unidentified officers. Apart from general evidence of Department hostility to her, she relied on the assertion that the scratches on her car bore paint color similar to the blue paint that is used on Department vehicles. It is not entirely clear whether plaintiffs car was parked on the street in each of these instances, although I so surmise. It is of course entirely possible for cars parked on a public thoroughfare in New York City to suffer damage, particularly paint scratches, from a host of causes entirely unrelated to hostility from local police officers. Nonetheless, given the persuasive evidence that plaintiff was viewed with considerable hostility by a number of officers in this time period and was the target of other forms of harassment, as well as the apparently repetitive nature of these incidents, I am inclined to view at least some of these incidents as probable marks of retaliation by unidentified officers. 8. Disparagement to Plaintiffs Husband Plaintiff also testified that some time in 1988 an unidentified Department employee telephoned her husband and accused her of having an affair with another officer in the precinct. According to plaintiff, this communication was both false and designed to destroy her marriage. She and her husband later separated, and she attributes the failure of her marriage, at least in part, to the stress caused not only by her mistreatment and resultant depression, but also by this false rumor. Plaintiff has no direct knowledge of any such effort to incite her husband, much less the source of such a communication, if indeed one was ever received. I view this allegation as simply unproven. 9. Being Followed Plaintiff offered testimony by a fellow officer, Sandra Craigg, that on two or three occasions in 1994, while riding with plaintiff in plaintiffs private car, she suspected that they were being followed by another vehicle, and she suggested that this was the work of fellow officers seeking to intimidate plaintiff, officer Craigg admitted that she did not specifically recognize either the other car or its occupant or occupants, and in the absence of any such supporting evidence, I view this allegation as unproven. Í0., Daily Assignments Plaintiff spent considerable time at trial seeking to demonstrate that she had.been subjected to a pattern of discriminatory.assignments, purportedly in retaliation for having disclosed Officer Ward’s misconduct to her superiors in 1988. Unlike many of the incidents to which I have alluded, this misconduct allegedly continued until 1994 or later. The asserted unfairness is said to have taken two forms. First, her superiors frequently assigned her to tasks that gave her little or no chance to advance through the ranks of the Department, principally because they denied her the opportunity to make arrests, which is apparently a hallmark of achievement within the Department. These undesirable assignments, in which she was often assigned to work with a fellow outcast, Officer Hector Ariza, included such tasks as monitoring the precinct telephone or parking lot, accompanying senior officers in their squad cars, guarding violent prisoners committed to a local psychiatric ward, and other so-called fixed-post duties, including strike duty. Second, plaintiff complained about the alleged frequency of her assignment to unpleasant or dangerous tasks. These included guarding violent prisoners, watching over corpses,- and patrolling union picket lines. The strike assignments, apart from their assertedly boring nature, were allegedly made still more unpleasant by virtue of the rule that, when on this form of patrol, she was not permitted to sit in a police van even if one was on the scene. Plaintiff complained that she and Officer Ariza were held to this regime even though other officers were permitted to ignore that restriction, a particularly onerous form of discrimination in the winter months. I credit plaintiff’s uncontradicted assertion that -she and officer Ariza were treated differently from other officers while on strike duty, and specifically that they were exposed to the elements in winter while other officers were permitted, apparently improperly, to warm themselves in a police van. Plaintiff’s more serious assertion, however, that she suffered from discriminatory assignments, is simply unproven. At the very least I would expect some concrete demonstration of the comparative frequency of her assignment and that of other officers to less favored posts, particularly since the precinct maintains records of all such assignments. Plaintiff failed, however, to proffer such evidence at trial, and offered no viable explanation for this failing. I note that there are two sets of records of assignments of each officer, one reflecting initial assignments and the other recording changes of assignment during a tour. In addition, each officer is required to maintain a separate memo book in which he or she records all pertinent events of each patrol day, including assignments and changes of assignments, as well as absences and various forms of leave, whether for vacation or medical reasons. From this set of data plaintiff could have reconstructed the frequency with which each officer in the precinct received any form of assignment or change of assignment. Plaintiff offered no such evidence. Rather she proffered simply a log of reassignments during a portion of the period from 1990 and 1991 (PXs 87-88), and her own testimony to the effect that she had received many unfavorable assignments. In response to questioning, plaintiff insisted that her assignments reflected a disproportionate number of undesirable posts, but she could not offer any specifics in that respect. The most basic failing in this aspect of her ease is the absence of data on the assignments of other officers in the precinct for any time period. Although plaintiff’s counsel first indicated that he had been unable to obtain these records from the City by subpoena, when confronted with the representation by defendants’ attorney that the City had never received such a request, he chose to forgo pressing the matter. I accordingly must infer that counsel never subpoenaed these records. The records that plaintiff did proffer— those listing reassignments during a tour— suffer from two obvious defects. First, they do not reflect the relevant universe, which is all assignments of officers in the precinct, but rather indicate only those instances when an officer’s assignment is changed during his or her tour. Second, plaintiff offered no analysis even of those fragmentary records to demonstrate the frequency of her reassignment to undesirable posts, as compared with the reassignment of other officers. Moreover, a review of the documents simply does not disclose any discernible pattérn in the reassignment of plaintiff to disfavored tasks, at least as' compared with other officers’ reassignments. As for plaintiff’s own testimony about this matter, it was simply not reliable. First, plaintiff professed to have relied upon a review of her own memo books in characterizing the frequency of her assignment to such tasks as guarding a body or a psychotic prisoner, strike duty or other fixed post patrol. Yet, when she was required,- during her testimony, to review those memo books and calculate the number of times that she had actually been assigned to these tasks, she reported far fewer such assignments than suggested in her original testimony. In a related vein, plaintiff complained about the denial of several requests by her for special “steady” assignments, which she viewed as desirable because they would accord better with her special scheduling needs as a single parent. In particular, she cited several unsuccessful requests for assignment to the so-called Community Policing Program (“C-POP”). She further testified that on several occasions when she had asked Lieutenant Marra to be considered for such an assignment, he told her that there were no openings, and yet she later learned that there had been an opening at the time and that it had been filled by another officer within days after her request. . Again, I am not persuaded that the denial of these requests was triggered, in whole or in part, by an intention to retaliate against her. As a general matter, a plaintiff seeking to demonstrate discrimination (or retaliation) in promotions or assignments must establish at a minimum that she applied for an open position, that she was qualified for the position, that she was not given the assignment and that this denial occurred, in circumstances suggesting that the refusal was motivated by a discriminatory animus. See, e.g., Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir.1997)(en banc). Moreover, even if she meets this initial burden, the defendants may proffer a non-discriminatory reason for denying her the position, and in that event the plaintiff must demonstrate that the proffered reason is pretextual and that the real reason was discriminatory or retaliatory in nature. Id. I find that plaintiff has not demonstrated that she was qualified for the C-POP position at the time in question and, even if I were to assume otherwise, she has not demonstrated that the neutral explanation offered by defendants was pretextual. In this regard I note that Inspector Albert Girimonte, the commander of the 90th Precinct beginning in November 1991, credibly testified that the C-POP program involved an effort to promote a continuing supportive relationship between the patrol officer and a particular community, and that it therefore required consistency in the presence of the officer on the streets of the chosen community. Inspector Girimonte reported that he had denied several of plaintiffs requests for the C-POP assignment principally because of her excessive absenteeism. It is not disputed that plaintiff had been on various forms of leave for extended periods of time between 1988 and 1992 (PX 92), and that the assignment to C-POP required that the officer be available for patrol on a consistent basis. Since plaintiff was not able at the time to meet this basic and reasonable requirement of the job, Girimonte reported, she was not given the assignment. I find this testimony to be both believable and not meaningfully contradicted. It therefore points to the fact that the refusals to provide this assignment to plaintiff were not motivated by a retaliatory animus. The absence of a malign intent in this regard is also underscored by the fact that, when plaintiff was legitimately qualified for the assignment, she received it. By 1993 her attendance had substantially improved, and then-Commander Girimonte therefore assigned her to the C-POP program in February 1993, although she ultimately withdrew from it in August 1994. 11. Promotions and Transfers Plaintiff also complained, albeit in very general terms, that she had been denied promotions or transfers because of her controversial status in the Department. The difficulty with her case on this point is the absence of any specifics. Plaintiff failed to establish which positions she applied for and whether she was qualified for them. Although she indicated a desire to be considered for such specialized units as the K-9 Corps and the Highway and Mounted Units, I lack the most basic information as to when she applied, whether openings were available, what qualifications were required, whether plaintiff had those qualifications, who was selected in her place, and what credentials they had for the job. The absence of such proof is by itself fatal to plaintiff’s claim in this respect. Moreover, given what I know of the background here, including particularly plaintiff’s absenteeism problems — a pattern that persisted over a number of years, including the period when she claims that she was denied such promotional opportunities — I am quite skeptical that she could demonstrate both that she was qualified and that her failure to obtain such assignments was attributable to a retaliatory animus. In sum, I do not credit plaintiff’s contention that these events reflect a decision within the precinct not to promote her or honor her request for reassignment, or that such a decision was attributable to a retaliatory intent. 12. Accommodations for Children Plaintiff also complains that on one or several occasions fellow officers were permitted to bring their children to the precinct whereas she was chastised for doing so. She also suggests that her supervisors took child care problems into account in making assignments. In contrast, she asserts, she was denied any help in this regard, and she attributes the difference in treatment to animus for her prior history with Officer Ward. There appear to be legitimate explanations for the concededly rare occasions when the precinct commander made an exception to the ordinary “no children” rule in the precinct. In particular, Inspector Girimonte indicated that he would countenance such an occurrence in an emergency, such as when the child-care person was sick. As far as posting was concerned, he indicated that assignments to key posts such as C-POP were not to be made on the basis of whether they would assist the officer in arranging for coverage for his or her children. Girimonte did cite one instance, however, of an officer who was in the midst of a potentially devastating custody dispute — including an apparently legitimate fear that the children might be kidnapped — and whose circumstances he did take into account in adjusting his work schedule. Plaintiff could fairly be viewed as not presenting equally compelling circumstances, and I am not prepared, based oh my assessment of the testimony and demeanor of Inspector Girimonte, to infer that he was motivated by discriminatory or retaliatory animus in this respect. In reaching this conclusion, I need not endorse the wisdom of a commander’s decisions; all that I need conclude is that he did not act for an improper purpose. I so find'. 13. Miscellaneous Incidents During the course of her testimony plaintiff alluded to a number of incidents that, although not part of a broad and consistent pattern, were cited as examples of hostile behavior that plaintiff attributes to continuing animus for her reporting of Officer Ward. I address each briefly. First, according to plaintiff, on one occasion on a date she could not recall when she was assigned to guard an emotionally disturbed prisoner, she entered the room in which the prisoner was held, only to discover that the prisoner was not in restraints, as required by police procedures. To make matters worse, she said, the prisoner was a former professional boxer and thus presumably capable of inflicting considerable harm. She managed to obtain prompt assistance from the hospital staff and thus escaped injury, but attributes the incident to a malevolent intention by an unidentified officer or officers to expose her to physical harm. Plaintiff did not indicate whether she had reported the incident, and I assume that if she did not, the defendants would be hard-pressed to attempt to rebut the testimony. Nonetheless, there was no meaningful effort to challenge plaintiffs account, whether by cross-examination or by rebuttal evidence, and I credit her testimony in this respect. Moreover, although mistakes of this sort can be innocently made, the confluence of this unusual event and plaintiffs plainly controversial status in the precinct at the time suggests a link between the two. Second, plaintiff suffered from a preexisting back injury, which apparently contributed to the frequency of her sick leaves. She reports that during a tour in June 1992 she was suffering pain and therefore decided to report to the Health Services Unit, a necessary prerequisite to absenting herself from duty. According to plaintiff, Inspector Girimonte directed that she undergo some form of medical screening at the same time to determine whether she was malingering. Plaintiff reported to the Health Services Office and was examined by a Dr! Guzman, who reportedly gave her a sheet of paper indicating that she should go on “limited duty” assignment. Plaintiff testified that when she showed this document to a Lieutenant O’Connor, who was apparently in charge of the Health Service^ Office, the lieu-, tenant tore up the document and told her to wait for an orthopedic surgeon, indicating that she was not going to be placed on such a restricted assignment. Plaintiff reports that eventually she was cursorily examined by a Dr. Axelrod, purportedly an orthopedic surgeon, and he told her to go back to work without limitation. In connection with this incident, plaintiff also complains that she was denied transportation between the precinct and the Health Services Office, even though her back condition caused her considerable discomfort when using public transportation. Ultimately, however, she arrived back at the precinct and apparently resumed her normal duties. Although somewhat skeptical .that events occurred in quite the manner suggested by plaintiff, I note that defendants called no witnesses to address this issue, and I am therefore left with plaintiffs uncontradicted account. On balance, I infer that plaintiffs supervisors were generally unsympathetic to her medical complaints and may have treated her with less solicitude in this regard than they did other, more popular officers. This differentiation may have several sources, including a certain lack of personal chemistry between plaintiff and others in the precinct. Nonetheless, I infer that this gulf was in all likelihood at least partially attributable to the original and apparently widely held view among fellow officers that she was to be shunned as an informer on one of her fellow officers. Third, plaintiff testified that her father died in March of 1989. She complains that the police officers called to the scene delayed assisting, and therefore may have contributed to his death. She also asserts that a phone call was made to the precinct to advise her of her father’s demise and that whoever was in charge of the switchboard failed to pass on the message. By implication, plaintiff suggests that these two episodes may have had some connection to her status in the precinct. Neither of these contentions is borne out by the record. (PX 80). Plaintiff was not present when her father died and is not competent to testify about events surrounding his death. Moreover, she never called any witness who could testify competently about the matter. As for the telephone message, the switchboard operator at the time was apparently Officer Beverly Walser, a friend of plaintiff and a witness for her at the trial. She did not indicate that she had received such a message, and there is no other evidence that a message had been received and deliberately withheld from plaintiff. Fourth, in 1995 plaintiff was involved in a major confrontation with her then-patrol sergeant, Cary Brofsky, which led to the filing of serious charges against her. Plaintiff contends that this fairly recent episode is evidence of a continuing pattern of retaliatory conduct directed at her. I disagree. It appears that on October 6,1995, plaintiff appeared at the precinct for a 7:00 A.M. patrol and was accosted by Brofsky, who accused her of being late. Plaintiff disputed this accusation and insisted that she had been on time. The discussion apparently deteriorated quickly, with plaintiff using some harsh profanity directed at the sergeant and the sergeant quite possibly reciprocating, if he did not in fact start the verbal sparring. Although he ordered her to remain in the room, she stormed out and went to the locker room to compose herself. Ultimately, charges were filed against her for lateness, insubordination and failure to obey a command. After a command hearing on March 6 and 8, 1996, she was convicted of these charges, and was suspended without pay for thirty days, put on termination notice and placed on probation for one year. The net effect was that she was subject to termination if she did not satisfactorily complete her probation. Plaintiff’s contention as to the root cause of this incident is not borne out by the evidence. I assume for this discussion that she accurately described the events, since her testimony is unrebutted, but she herself concedes that she lost her temper, cursed the sergeant and refused to remain when ordered to do so. Moreover, even if I assume that the accusation of lateness may not have been justified, I see little reason to suspect that Brofsky, who presumably came to the precinct long after the Ward incident, was motivated by a desire to retaliate. In any event, plaintiff had the benefit of a subsequent hearing, and she offers no evidence to suggest that the hearing officer was either demonstrably biased or blind to whatever evidence was presented to him. Thus we cannot conclude that the outcome reflected an arbitrary exercise of retaliatory power by the Department. In any event, I view such a blatant form of retaliation as most unlikely for several reasons. First, given the pendency of this lawsuit, it would have been sheer folly for the Department to engage in retaliation of this kind. Second, I note that in the many years that plaintiff had been assigned to the 90th Precinct, there is no indication of a pattern of using disciplinary charges or even negative evaluations as a means of punishing her for the Officer Ward incident. Third, as even plaintiff conceded and as was evident from her manner at trial, she is quite high-strung and, I believe, likely quickly to take offense and react accordingly. It appears from her description that a minor quarrel with Brofsky erupted into a major confrontation for reasons of personality and not because of an intention on the part of the defendants to harass her. 14. Plaintiffs Isolation Plaintiff testified that she has suffered from a pariah status within the precinct for many years. This complaint appears to encompass a variety of asserted difficulties, ranging from the failure, on at least one occasion, of a fellow officer to bring her coffee from a neighboring store when other officers received such service, to the asserted refusal of some officers to pair up with her for patrol purposes. It also involves periodic remarks from both line officers and occasionally a supervisor to the effect that plaintiff is to be shunned or viewed with suspicion because of her past history. She further alleges that on at least one occasion in January 1991, when she complained to her patrol supervisor, defendant Sergeant James McDermott, about the pattern of her assignments, he suggested that she had no right to complain since she was viewed as a “rat.” Plaintiffs testimony in this regard was not contradicted on the record, and on the whole I view it as credible, at least in its general terms. This follows not merely from the plausibility and general credibility of plaintiffs account and from the absence of contradiction, but also from the consistency of her testimony with the pattern of behavior documented in the so-called Mollen Commission report on corruption within the Department (see PX 61 at 51-69), and from the Precinct Commander’s handling of an incident involving graffiti on a wall in the precinct, a matter to which I turn in the succeeding section. 15. The Graffiti Related to plaintiffs claim of having been deliberately isolated and shunned within the precinct, she cites the discovery of graffiti of uncertain origin in the male officers’ bathroom at the precinct in 1994. The dating of this graffiti is unclear, and the command’s response to it is disturbing. Moreover, it suggests that hostility to plaintiff was not entirely abated within the precinct even as recently as three years ago. In October 1993 Officer White-Ruiz filed this lawsuit and arranged for service, among others, on Inspector Girimonte. The complaint related the litany of plaintiffs alleged difficulties in the , precinct and asserted, that they were traceable to police hostility to her as a whistleblower. In November 1993, Officer Ariza commenced a similar action and also arranged for service of his complaint on Inspector Girimonte. The complaint by Officer Ariza, unlike plaintiffs, specifically alluded to the presence of graffiti on the walls of the men’s room at the 90th Precinct labeling Officers White-Ruiz and Ariza as “rats” and using other, still more uncomplimentary terms about both officers and the Civilian Complaint Review Board. (PX 16 at ¶ 18). Upon receipt of plaintiffs complaint, Inspector Girimonte took no action to assess the validity of her allegations. Moreover, when he reviewed Ariza’s complaint, he did not even bother to verify the existence of the alleged graffiti. Although he testified that he had requested an aide to check on the matter in November 1993, he admitted at trial that he had never heard back and had never followed up. The only effort to deal with the graffiti occurred in April 1994, when a police officer, Stephen Marino, reported to the precinct’s Integrity Control Officer, Lieutenant Thomas O’Neill, that he had observed Officer Ariza in the men’s room with a camera, apparently taking photographs, and that he suspected that Ariza may have been responsible for writing some of the graffiti on the same day. At that point O’Neill requested the assistance of the Crime Scene Unit, which arrived on the scene to take photographs. This was the prelude to an extended investigation by the FIAU, apparently for the limited purpose of determining whether Ariza was responsible for the graffiti. That investigation ended inconclusively, and the precinct commander then arranged for the elimination of the offending graffiti. This sequence of events strongly suggests that the supervisors of the 90th Precinct were indifferent to the presence of such comments on the walls of the precinct. As Lieutenant O’Neill admitted, the writing of such offensive graffiti was considered misconduct, and warranted both an inquiry as to who was responsible and the elimination of the graffiti. Despite this acknowledgment and explicit notice of the existence of the graffiti to Inspector Girimonte since at least November 1993, nothing was done about it until it appeared that Officer Ariza might be documenting the graffiti either for public release or for use in his lawsuit, and at that point the only, effort undertaken by O’Neill and the rest of the Command was to attempt to blame Ariza for it. (PXs 27, 29-30, 36-37). When that effort failed, no further steps were taken to assess responsibility, despite the evident availability of means' at least to make a reasonable inquiry. This conduct bespeaks apparent indifference to the problem of retribution being visited on officers who did not adhere to the widely acknowledged code of silence. As documented by the Mollen Commission report, which I discuss below, and publicly admitted by defendant and former Police Commissioner Raymond Kelly, this code not only encouraged officers to refuse to report instances of misconduct by fellow officers, but actively sought to isolate and retaliate against officers who defied the expectation of silence. The indifference of the precinct command to the presence of this graffiti presumably extends to the potential significance of such graffiti, evidencing not only disdain for the officers targeted by the written comments, but also more generally some hostility to the role and responsibilities of the IAD, which is charged with rooting out police corruption. Of particular significance for plaintiffs case, the continued and evidently tolerated presence of such graffiti presumably served as a warning to rank-and-file officers to keep their distance from Officer White-Ruiz, and thus served the function of continuing whatever stigmatization may have arisen from the original brouhaha over her turning in a fellow officer. 16. Unavailability of Department Remedies Apart from the actions allegedly taken to punish plaintiff for having spoken out, she complains about the asserted refusal of the Department and her superiors to do anything concrete to address the problem since 1988. Thus, when she complained to the appropriate authorities in 1988 about the interference with her radio and the failure of the other officers to come to her assistance, she asserts that Department, officials conducted only a pro forma investigation, although they had the means to address the problem, and then never reported to her the results of their inquiry despite her repeated requests. Similarly, she alleged that when she reported her receipt at her home of the copy of the memorandum documenting Officer Ward’s termination, the Department made almost no meaningful effort to determine the identity of the wrongdoer and then never told her of its efforts or the results obtained. Furthermore, several years later she contacted the Department’s Office of Equal Employment Opportunity (“OEEO”) to report her complaints about her treatment in the precinct, and was allegedly rebuffed, on the asserted basis that such a complaint of retaliation for whistleblowing was not within the jurisdiction of the OEEO, and that she should complain to the very precinct command hierarchy that was allegedly sponsoring or tolerating this retaliatory conduct. She claims to have also brought the matter to the attention of several individuals at the IAD and reports that she never heard back from them, even though she mobilized a concerned organization representing minority members of the Department to press the matter. Finally, she reports that her last effort to obtain redress short of litigation involved her preparation of a letter addressed to the then-Commissioner Raymond Kelly in late 1992. In the letter she outlined some of the difficulties that she was encountering, and requested an interview. She reports that, although she personally delivered a copy of the letter to a “Sergeant Ferrie” at the Commissioner’s Office in December 1992, she never received a response. Plaintiff’s testimony as to her efforts to obtain redress are not meaningfully contradicted in the trial record. Although I view her complaints with regard to the adequacy of some of the investigations as perhaps exaggerated, the underlying pattern of futility strongly suggests the very low priority that the Department appears to have placed on protecting officers who reported misconduct — a state of affairs that I note is also echoed in the Mollen Commission report. The FIAU investigation of the asserted interference with plaintiffs radio transmissions appears to have documented the occurrence of the event. Plaintiff complains that the investigators made little effort to identify who was responsible, and I am inclined to agree. I assume that if the investigators had given this matter higher priority, some concrete steps could have been taken to identify the officers involved. The current record discloses none. Although there is no guarantee that such efforts would have succeeded, even a failed effort would presumably have carried a message to the officers that such conduct was not tolerated. I do not sit as a judicial overseer of the Department’s handling of internal disciplinary matters. Nonetheless, I do view the lack of apparent effort in this respect as at least indicative that the Department gave this problem a low priority, a particular concern because the Department had reason to believe by that time that plaintiff was an actual or potential target for harassment as a result of her involvement in the Officer Ward affair. As for the Department’s investigation of the document anonymously mailed to plaintiff, she suggests that the investigators could have pursued precinct-wide fingerprint and handwriting analysis. The investigators eoneededly did not do so; rather, they asked plaintiff whom she principally suspected of involvement and then checked the handwriting of those few. Having gotten no matches, they apparently closed the inquiry and never informed plaintiff of the results. Once more, I infer that this matter was not given a high priority. I assume that a more extensive effort might have yielded some results. Again, I recognize that the Department supervisors obviously have broad discretion as to how to allocate their resources. Nonetheless, given the plaintiffs prior history — including her role in disclosing Officer Ward’s dereliction and the prior incidents of retaliation known to her superiors — and also the apparent breach of precinct security in releasing plaintiffs home address, I again infer a degree of deliberation in the Department’s implicit decision as to how far to go in addressing plaintiffs complaint. I also credit plaintiffs account of her effort to bring her problems to the attention of the OEEO. That being said, I do not view the response of the OEEO officer as improper or as reflecting any intention to downplay the potential significance of plaintiffs complaints. It is entirely understandable that the jurisdiction of that office would be limited to EEO issues and that plaintiffs whistleblowing complaints do not fit within that category. I do view the record, however, as not providing a clear indication that plaintiff had an effective remedy that she failed to invoke. She testified to having made periodic complaints to some of her superiors about some of the alleged misconduct of fellow officers, but this appears not to have been a viable approach, as illustrated by the welcoming comments of Captain Courtney when she first came to the 90th Precinct and the subsequent remark of Sergeant McDermott about her being a “rat.” Defendants have not suggested a credible alternative that she was plainly afforded and that she eschewed. Finally, with regard to plaintiffs alleged effort to reach Commissioner Kelly, I note that defendants proffered the testimony of Chief Lowell Stahl, who is currently serving in the Office of the Commissioner, to the effect that a file search of that office had not yielded the letter assertedly authored and delivered by plaintiff. I have no reason to doubt the bona fides of this representation. I equally have no reason to question plaintiff’s testimony that she prepared and delivered a letter of complaint to that office and never received a response. I do not infer, however, that the lack of a response is necessarily attributable to a refusal by Kelly to deal with such a matter. While it is possible that he did in fact personally receive the letter and did refuse or fail to act on it, I view as more plausible the inference that the letter was not actually received by the individual who was responsible for processing or otherwise dealing with such communications. Such a slip-up may have occurred either because plaintiff failed to give the letter to the correct person or because office procedures were not correctly followed, or both. Such failings are the more likely explanation since, even if the Commissioner were intent on ignoring such complaints, it seems likely that he would nonetheless have had in place a mechanism to acknowledge their' receipt regardless of whether satisfaction was to be granted. In short, I do not read the Commissioner’s silence as reflecting his knowledge of and intention to ignore plaintiff’s complaint. 17. The Asserted Preexisting Department Policy Encouraging or Acquiescing in Retaliation Against Whistleblowers Apart from the experiences that plaintiff personally recounted, she has offered several other pieces of evidence designed to demonstrate that, during the relevant time period, the Department pursued an unwritten policy or practice of encouraging or at least tolerating a pattern of harassment directed at officers who exposed instances of police corruption. The principal source of evidence with regard to this matter is the final report, dated July 7, 1994, of the New York City Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, the so-called Mollen Commission. (PX 61). I have previously addressed the significance of that report in denying the summary judgment motion of the City. White-Ruiz v. City of New York, 1996 WL 603983, at *3-5 (S.D.N.Y. Oct.22, 1996). In the wake of the trial, I reiterate certain observations in the report, which I find to be entirely reliable. The Mollen Commission Report documents in detail a pattern of extensive police corruption, extending to many City precincts and lasting at least several decades. Accompanying that pattern, and essential to its maintenance, according to the Commission, was a so-called “code of silence”, under which even honest officers were expected to protect corrupt colleagues from detection and punishment. In substance the Commission found that this culture “eneourage[s] corruption” and “thwart[s] efforts to control corruption.” (Report at 51). In explaining the persistence of the code of silence, the Commission noted that it was stringently, if informally, enforced in the Department: Officers who report misconduct are ostracized and harassed; become targets of complaints and even physical threats; and are made to fear that they will be left alone on the streets in a time of crisis. This draconian enforcement of the code of silence fuels corruption because it makes corrupt cops feel protected and invulnerable. (Id. at 53). Based on specific instances described in the Report, the Commission concluded that enforcement of the code of silence was pervasive, extending to virtually all precincts, and targeted both line officers and higher police officials. (E.g., id. at 53-55). Moreover, the code was inculcated at the very start of the new officers’ police careers, in the New York Police Academy, where the instructors warned recruits never to become a “rat” (id. at 55), and it extended even to the Department’s Internal Affairs Division, which may disclose the identity of complainants to their colleagues. (Id.). The Commission also addressed the responsibility of the Department itself for this state of affairs. Thus, it noted that the Department had neither acknowledged the existence of the code of silence nor taken any steps to end it. (Id. at 57). Most obviously, it had not ensured' confidentiality to officers who reported instances of corrupt behavior by fellow officers. (Id. at 58). More generally, the Department’s “management practices have often fueled an officer’s susceptibility to corruption.” (Id. at 60). Of particular relevance, the Commission found that officers’ widespread “cynicism about the Department’s commitment to corruption control is justified.” (Id. at 64). The justifications for this view ranged from disinclination by supervisors to enforce anti-corruption policies to outright protection or encouragement of such behavior and active thwarting of complaints. (Id. at 64). The extent of the problem is underscored in Chapter Four of the Report, titled “The Collapse of the Department’s Corruption Controls.” (Id. at 70). In its discussion, the Commission documents that the system of oversight installed several decades before, in the wake of the report of the Knapp Commission, had completely collapsed years earlier, with only minimal efforts to trace corrupt activities. Of particular relevance to this case, the Commission emphasized that the anti-corruption effort had withered because top management in the Department not only had lost interest in it, but had conveyed the message, especially after one major scandal in 1986, that disclosure of corruption was undesirable and thus to be discouraged. (Id. at 71-73, 78). As the Report notes, the enforcement of anti-corruption policies and procedures installed in the 1970s turned on the principle of command accountability, and that rule “depended solely on the Police Commissioner’s dedication and adherence to that principle. If the Police Commissioner did not enforce a policy of holding commanders accountable when corruption was detected, no other person or unit within the Department accepted responsibility for carrying out that important function. Over time, enforcement of command accountability completely broke down.” (Id. at 75). In addition, the Department failed to exercise continuing supervision over the Internal Affairs Division. This failing was attributed to a lack of interest by the highest level managers of the Department and the “natural reluctance [of the Department] to uncover corruption.” (Id. at 75). As the Report observes: [O]ne of the basic principles of command accountability — that diligence in uncovering corruption will be rewarded — had been completely perverted. In recent years, a message has filtered down from top commanders — including Police Commissioners — that disclosure of corruption, even that resulting from vigilant corruption fighting, would be viewed as a management failure. (Id. at 78). As a result, the Report notes, “[b]y the time the Commission commenced its inquiries in September 1992, only the skeleton of [the original oversight] system remained.... This state of affairs was allowed to continue because it appeared to protect the Department and satisfied its top commanders. No one in the Department had any incentive to fix what had broken, until their feet were held to the fire of public scrutiny.” (Id. at 76. Accord, id. at 79). Other failings, including the absence of field supervision and the paralysis of the Internal Affairs Division, were also attributable to a determined lack of interest in corruption controls by top management, including Police Commissioners. (Id. at 82, 88, 90 (noting “Department’s preference to bury rather than confront the problem of police corruption”).) As recounted by the Commission, this documented policy of ignoring police corruption and discouraging efforts to uproot it continued until after the Commission itself had begun to investigate the Department in mid 1993. Thus the Report notes the following: [T]he Department completely abandoned its responsibility to transform [the police culture that tolerates corruption]. It made little effort to change the attitudes that foster corruption among the rank and file, supervisors or commanders; and it made little effor