Milici v. Bratton

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MICHAEL MILICI,

Plaintiff, MEMORANDUM & ORDER

19-CV-2883 (PKC) (ST)

- against -

WILLIAM BRATTON, Former Police

Commissioner; LAWRENCE BYRNE; JOHN

DOES #1–5; CITY OF NEW YORK,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Michael Milici initiated this action on May 15, 2019 against Defendants William

Bratton, the former Commissioner of the New York City Police Department (“NYPD”); Lawrence

Byrne, the NYPD’s Deputy Commissioner of Legal Affairs; five unidentified NYPD Officers who

allegedly assisted Commissioner Bratton in deciding to terminate Plaintiff’s employment; and the

City of New York (“the City”). (Complaint (“Compl.”), Dkt. 1, ¶¶ 4–5, 19–21.) Before the Court

is Defendants’ motion to dismiss this matter for failure to state a claim upon which relief may be

granted, and, in the alternative, to dismiss this matter as to the individual Defendants because they

are entitled to qualified immunity. (Defendants’ Brief (“Defs.’ Br.”), Dkt. 29, at 5, 14.) For the

reasons set forth herein, Defendants’ motion is granted in full.

BACKGROUND1

In 2016, the United States Attorney’s Office for the Southern District of New York

(“SDNY”)2 initiated a federal criminal probe that investigated two political bundlers for Mayor

De Blasio: Jona Rechnitz and Jeremy Reichberg. (Compl., Dkt. 1, ¶ 27.) The probe revealed that

the two political bundlers “were trading cash, political donations, gifts, food, and vacations to the

NYPD and other City officials in exchange for unprecedented City access,” which was comprised

in part of access to the NYPD, including “private police escorts, fixing and avoiding driving

violations, street closures/permits, VIP Access to parades/events, and gun licenses to unqualified

applicants.” (Id.) The probe extended to a number of NYPD officers. (Id.)

I. Plaintiff’s Termination

At the time Plaintiff’s employment was terminated by the NYPD, he was a Second Grade

Detective who had a pending application for a promotion to First Grade Detective. (Id. ¶ 25.)

Prior to his termination, Plaintiff was an officer at the 66th Precinct, through which position he

met Reichberg. (Id. ¶ 28.) On or about March 31, 2016, in connection with the probe, Plaintiff

was subpoenaed to testify before a federal grand jury in the SDNY.3 (Id. ¶ 29.) Upon advice of

1 For purposes of this Memorandum & Order, the Court assumes the truth of Plaintiff’s

non-conclusory, factual allegations in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621

F.3d 111, 124 (2d Cir. 2010) (citing, inter alia, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

2 The Court assumes that the complaint’s references to the “SDNY” refer to the United

States Attorney’s Office for the SDNY.

3 While Defendants assert that the Court may take judicial notice that Plaintiff is “an

unindicted co-conspirator in the criminal corruption case brought against ex-NYPD Deputy

Inspector James Grant and Brooklyn businessman Jeremy Reichberg” (Defs.’ Br., Dkt. 29, at 3

n.3), Plaintiff alleges that he “was never convicted of any crime, never accepted any bribes[,] and

never engaged in any illicit sex acts with prostitutes,” (Compl., Dkt. 1, ¶ 10). The Court need not

determine whether it may take notice or consider these facts, as they are not relevant to the

resolution of Defendants’ motion.

counsel, Plaintiff exercised his Fifth Amendment right not to testify before the grand jury. (Id.

¶ 29.) Plaintiff was subsequently told first that he was suspended, but then the NYPD reversed

itself and placed him on modified duty. (Id. ¶¶ 30, 30 n.1.)

In connection with the probe, Commissioner Bratton made public statements that the

corruption within the NYPD was “contained” and then “conspired” with Deputy Commissioner

Byrne “to terminate and/or force the retirement of certain officers to show that the corruption was

contained to a select group of officers.” (Id. ¶¶ 31–32.) In late April 2016, Plaintiff realized that

he “would be a scapegoat for the corruption at the NYPD [and] gave his 30-day notice for

retirement.” (Id. ¶ 33.)

Days after Plaintiff submitted his retirement papers, Defendants ordered an internal hearing

for the purpose of “interrogat[ing] Plaintiff [ ] under Patrol Guide Section ‘206-13’ (‘PG 206-13

hearing’) . . . because the commissioner knew that Plaintiff would not testify due to the ongoing

criminal probe, and the refusal to testify at the PG 206-13, was in and of itself a violation of the

patrol guide, which would help justify Plaintiff’s termination.” (Id. ¶¶ 35–36.) On advice of

counsel, Plaintiff did not appear at the PG 206-13 hearing “because statements from the hearing

could be used by prosecutors involved in the criminal probe.” (Id. ¶ 35.) Commissioner Bratton

and Deputy Commissioner Byrne “then filed trumped up internal charges and specifications

against [ ] Plaintiff, which included charges related to Plaintiff’s failure to appear for the PG 206-

13, and on May 18, 2019, Plaintiff was fired.” (Id. ¶ 37.) As a result of Plaintiff’s termination, he

was not issued a “Pistol License Inquiry” form, also known as a “good guy letter,” which allows a

retiree to receive a pistol permit and opens up multiple avenues of employment opportunities for

retired officers; Plaintiff also lost his “terminal leave.” (Id. ¶¶ 38–39.)

II. “White Shirt” Immunity

According to Plaintiff, “[t]he NYPD has had a long-standing culture, policy[,] and practice

of ‘White Shirt Immunity,’ the so-called term for allowing more lenient discipline on higher ranked

police officers versus lower ranking members for the similar misconduct.” (Id. ¶ 48; see also

id. ¶¶ 49–55 (describing examples).) In June 2018, after a number of stories were published “about

the lack of uniformity in the way that the NYPD handled internal punishment and the lack of severe

discipline to officers who committed serious offenses such as lying in official proceedings or

documents,” the Commissioner of the NYPD, James O’Neill, organized a panel of experts to

review the NYPD’s disciplinary practices. (Id. ¶ 56.) The panel concluded that there was no basis

to find that higher-ranking officers consistently received better treatment in the NYPD’s

disciplinary system. (Id. ¶ 58.) Plaintiff asserts that the conclusion of the panel was “flawed” for

a number of reasons: (1) it only examined data from two years (id. ¶ 58); (2) the records of certain

officers would not have been reviewed since they “were never charged with any internal

disciplinary violations because of their political connections” (id. ¶ 59); and (3) the panel of experts

was biased because it consisted entirely of former federal prosecutors (id. ¶ 56). However, the

panel did conclude that the Department Advocate who oversees the NYPD’s disciplinary process

frequently receives outside input through informal communications at NYPD and other events,

and that the NYPD’s “disciplinary system is susceptible to improper influences or inequities,

including in making decisions not to report misconduct at all.” (Id. ¶¶ 61–62.)

Plaintiff claims that he was treated differently than the “White Shirts,” numerous

supervising officers within the NYPD who were similarly issued federal grand jury subpoenas as

part of the probe and who declined to testify, but who were not subjected to a PG 206-13 hearing

or disciplined. (Id. ¶¶ 40–42.) The “White Shirts” were allowed a “graceful exit” and retired with

“good guy letters.” (Id. ¶¶ 43–44.) Their only penalty was that they “were forced to abandon their

accrued compensation, vacation[,] and comp[ensation] time.” (Id. ¶ 44.) The White Shirts also

“filed a grievance with the City’s Office of Labor Relations over losing their positions,” arguing

that they were blackmailed into retirement. (Id. ¶ 45.) The arbitrator who presided over the

grievance proceedings observed that “[t]he [NYPD]’s motive was depicted as a concern about

negative publicity, although no one was ever charged with misconduct.” (Id. ¶ 46 (record citation

omitted).) Plaintiff alleges that “the [NYPD]’s motives for getting rid of Plaintiff [were] the

same.” (Id. ¶ 47.) Due to differences in his labor contract from that of the White Shirts, Plaintiff

could not challenge his loss of vacation or comp time as a result of his termination. (Id.)

III. Procedural History

Plaintiff filed the instant action on May 15, 2019, asserting civil rights claims against the

individual and municipal Defendants for equal protection violations. (See generally id.) On

August 2, 2019, Defendants filed a motion for a pre-motion conference in anticipation of their

motion to dismiss. (Dkt. 16.) That motion was granted by this Court on August 14, 2019 (Aug.

14, 2019 Order), and a pre-motion conference was held on September 4, 2019 (Sept. 4, 2019

Minute Entry). Defendants’ motion to dismiss was fully briefed on January 31, 2020. (Dkts. 28–

31.)

LEGAL STANDARD

I. Motion to Dismiss

In order to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure

(“FRCP”) 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). “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. (internal citation omitted). “Determining whether a complaint states a

plausible claim for relief” is “a context-specific task that requires the reviewing court to draw on

its judicial experience and common sense.” Id. at 679 (internal citation omitted). “In addressing

the sufficiency of a complaint, [the Court] accept[s] as true all factual allegations and draw[s] from

them all reasonable inferences; but [the Court is] not required to credit conclusory allegations or

legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.

2013) (citing Twombly, 550 U.S. at 555, 557).

II. Qualified Immunity

Courts have an obligation to determine the applicability of a qualified immunity defense at

the earliest stage of the litigation. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“[The

Supreme Court] repeatedly ha[s] stressed the importance of resolving immunity questions at the

earliest possible stage in litigation.” (internal quotation marks and citation omitted)). “Qualified

immunity shields officials ‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.’” McCray v. Lee, 963 F.3d 110, 119 (2d Cir. 2020) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). “[A] government official’s conduct violates clearly established law when,

at the time of the challenged conduct, the contours of a right are sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.” Abrams v.

Dep’t of Pub. Safety, 764 F.3d 244, 255 (2d Cir. 2014) (internal quotation marks and alteration

omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “The operation of the ‘clearly

established’ standard ‘depends substantially upon the level of generality at which the relevant

“legal rule” is to be identified.’” McCray, 963 F.3d at 119 (quoting Anderson v. Creighton, 483

U.S. 635, 639 (1987)). In other words, it is not necessary that “the very action in question has

previously been held unlawful” for an official to be denied immunity. Id. (internal quotation marks

and citations omitted).

DISCUSSION

I. Failure to State a Claim

A. “Class-of-One” Equal Protection Theory

Plaintiff’s claims are grounded in a “class-of-one” theory under the Equal Protection

provision of the Fourteenth Amendment. (See Compl., Dkt. 1, ¶¶ 63–71.)4 The Supreme Court

4 Although the final transcript of the pre-motion conference is not yet available on the

docket, the Court is mindful of the following colloquy it had with Plaintiff’s counsel:

The Court: The first issue I want to clarify is with you, Mr. George. Is it correct,

as the City has assumed, that your theory of equal protection is a class of one?

Mr. George: That’s correct, Your Honor.

The Court: Not select[ive] prosecution?

Mr. George: Correct.

The Court: Okay. So your theory is that somehow, Mr. Milici was treated

differently than the officers you colloquially refer to as “the white shirts”?

Mr. George: Correct, Judge.

The Court: In terms of [your] termination post this investigation, is that right?

Mr. George: That’s correct, Your Honor.

Although the Court finds Plaintiff’s belated attempt to, in the alternative, construe his claims as an

equal protection claim stemming from his membership in a “group of non-supervisors”

unpersuasive (Pl.’s Br., Dkt. 31, at 3), it nevertheless addresses and finds that, as discussed infra,

Plaintiff fails to state a claim under that alternative theory.

has essentially eliminated class-of-one equal protection claims in the public employment context.

See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 605 (2008). In Engquist, the Court found that

the class-of-one theory of equal protection—which presupposes that like

individuals should be treated alike, and that to treat them differently is to classify

them in a way that must survive at least rationality review—is simply a poor fit in

the public employment context. To treat employees differently is not to classify

them in a way that raises equal protection concerns. Rather, it is simply to exercise

the broad discretion that typically characterizes the employer-employee

relationship. A challenge that one has been treated individually in this context,

instead of like everyone else, is a challenge to the underlying nature of the

government action.

Of course, that is not to say that the Equal Protection Clause, like other

constitutional provisions, does not apply to public employers. . . . But we have

never found the Equal Protection Clause implicated in the specific circumstance

where, as here, government employers are alleged to have made an individualized,

subjective personnel decision in a seemingly arbitrary or irrational manner.

Id. (internal citations omitted). The Second Circuit has applied this doctrine to find that class-of-

one claims have been “cabined” with respect to government employees. Hu v. City of New York,

927 F.3d 81, 95 (2d Cir. 2019); see also Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135,

140 (2d Cir. 2010) (“The Supreme Court[] . . . eliminated class-of-one claims for government

employees. In essence, Engquist is a jurisdiction-limiting decision.”); Epstein v. County of Suffolk,

No. 14-CV-0937 (JS) (ARL), 2015 WL 5038344, at *11 (E.D.N.Y. Aug. 26, 2015) (“Defendants

are correct that the Equal Protection Clause does not apply to public employees, like Plaintiff, who

are asserting a class-of-one theory of discrimination. Thus, such an argument is foreclosed in this

case.” (citation omitted)); Mancuso v. Village of Pelham, No. 15-CV-7895 (KMK), 2016 WL

5660273, at *13 (S.D.N.Y. 2013) (“As a probationary firefighter employed by the Village, and

thus a public employee, Plaintiff cannot state a valid class-of-one claim against Defendants.”

(internal quotation marks and record citation omitted)). For this reason alone, Plaintiff fails to

state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6); Iqbal, 556 U.S. at

678.

However, even if Plaintiff’s class-of-one claim was not unequivocally barred by Supreme

Court and Second Circuit precedent, it would fail. To establish a class-of-one claim a plaintiff

must allege that “he and a comparator are prima facie identical.” Hu, 927 F.3d at 92 (internal

quotation marks and citation omitted). This is accomplished

by showing that (i) no rational person could regard the circumstances of the plaintiff

to differ from those of a comparator to a degree that would justify the differential

treatment on the basis of a legitimate government policy; and (ii) the similarity in

circumstances and difference in treatment are sufficient to exclude the possibility

that the defendant acted on the basis of a mistake.

Id. (internal quotation marks and citation omitted). The Second Circuit “explained that the

existence of highly similar circumstances provides the basis for inferring that the plaintiff was

intentionally singled out for reasons that so lack any reasonable nexus with a legitimate

governmental policy that an improper purpose—whether personal or otherwise—is all but

certain.” Id. (internal quotation marks, citation, and alteration omitted).

Plaintiff has simply not alleged any degree of similarity, no less a high degree of similarity,

between him and the “White Shirts,” whom he alleges were treated more favorably than him. By

his own admission, Plaintiff (1) was a different rank than the “White Shirts” (Compl., Dkt. 1, ¶ 8);

(2) was governed by a different labor contract than the “White Shirts” (id. ¶ 47); (3) violated the

NYPD Patrol Guide by disobeying an order to participate in a PG 206-13 hearing, which the

“White Shirts” were not ordered to do in exchange for resigning and forfeiting certain benefits (id.

¶¶ 35–36, 41–42); and (4) was subject to a disciplinary proceeding as a result of his non-

compliance with the PG 206-13 hearing order (id. ¶ 37).

For these reasons, Plaintiff’s equal protection class-of-one claim fails to state a claim upon

which relief may be granted and is dismissed.

B. “Group Theory”

Plaintiff, in his reply brief, asserts that even if he were not able to state an equal protection

claim under a class-of-one theory, his equal protection claims flow from his membership in a class

or group and that he “has sufficiently pleaded that the disparate impact in treatment that he endured

was a result of being part of a larger group of NYPD officers who are not high-ranking supervisors

or ‘White Shirts.’” (Pl.’s Br., Dkt. 31, at 3.) For the reasons discussed supra in note 4, the Court

finds that Plaintiff did not assert this claim in his complaint, at all, which Plaintiff confirmed at the

pre-motion conference relating to this motion. Moreover, Plaintiff’s complaint does not contain a

single allegation that he was part of a group that was treated differently (see generally Compl.,

Dkt. 1); every single comparison posited by Plaintiff compared his treatment with that of the

“White Shirts” (see id. ¶¶ 40–44, 47, 65–66).

However, even assuming arguendo that Plaintiff has pleaded that non-supervisor officers

at the NYPD were treated differently than supervisors or “White Shirts,” his claim fails. “The

disparate impact theory of liability is not available for Section 1983 equal protection claims

because proof of discriminatory intent is required to demonstrate a violation of the Equal

Protection Clause, whereas disparate impact theory bases liability on discriminatory effect alone.”

Jones v. E. Hartford Police Dep’t, No. 13-CV-1007 (WWE), 2016 WL 1273170, at *8 (D. Conn.

Mar. 31, 2016) (citing Reynolds v. Barrett, 685 F.3d 193, 201 (2d Cir. 2012)); see also Lebada v.

N.Y.C. Dep’t of Educ., No. 14-CV-758 (LAK) (GWG), 2016 WL 626059, at *15 (S.D.N.Y. Feb.

8, 2016) (“[T]o the extent plaintiffs are trying to make a disparate impact claim, any such claim is

impermissible. . . . [A] plaintiff pursuing . . . a denial of equal protection under § 1983 must show

that the discrimination was intentional[.]” (internal quotation marks omitted) (citing, inter alia,

Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004)), report and recommendation

adopted, 2016 WL 8453417 (S.D.N.Y. May 16, 2016). Thus, Plaintiff’s disparate impact theory

fails to state an Equal Protection claim under § 1983.

C. Monell Claim

The Court also dismisses Plaintiff’s second claim for relief—a Monell claim for municipal

liability. “It is well-settled that a Monell claim cannot succeed without an underlying constitutional

violation, and here there is no constitutional violation.” Mastromonaco v. County of Westchester,

779 F. App’x 49, 51 (2d Cir. 2019) (summary order) (citing City of Los Angeles v. Heller, 475

U.S. 796, 799 (1986)).

II. Qualified Immunity

Finally, the Court finds that, even if Plaintiff were able to state a claim upon which relief

may be granted, the individual Defendants would be entitled to qualified immunity. First, Plaintiff

has failed to “show[] facts making out [a] violation of a constitutional right,” a threshold question

in a qualified immunity analysis. Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.

2013). Second, qualified immunity shields officers from liability when they make “reasonable”

mistakes of fact or law. See Jones v. Treubig, 963 F.3d 214, 234 (2d Cir. 2020). For all the reasons

discussed supra, it would have been reasonable for the individual Defendants to have believed that

Plaintiff was not protected by the Equal Protection provisions in the public employment context.

CONCLUSION

For all of the reasons contained herein, Defendants’ motion is granted in its entirety, and

this case is dismissed. The Clerk of Court is respectfully requested to enter judgment and close

this case.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: August 14, 2020

Brooklyn, New York