Parrott v. Krasicky
Filing
69
ORDER granting 45 Motion for Summary Judgment. Signed by Judge Janet Bond Arterton on 5/27/2014. (Morril, Gregory)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KIMBERLY PARROTT,
Plaintiff,
v.
KAREN KRASICKY,
Defendant.
Civil No. 3:12cv820 (JBA)
May 27, 2014
RULING GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Police Officer Kimberly Parrott, brought this action against the
Plymouth Police Chief Karen Krasicky in both her official and individual capacities
pursuant to 42 U.S.C. § 1983, alleging violations of her Fourteenth Amendment right to
be free from discrimination on the basis of gender.
Defendant moves [Doc. # 45] for summary judgment on all counts in the
Complaint. For the reasons that follow, Defendant’s motion is granted.
I.
Factual Background
Plaintiff has been a police officer in the Plymouth Police Department in Terryville,
Connecticut since July 2002. (Parrott Dep. Tr., Ex. 1 to Def.’s Loc. R. 56(a)1 Stmt. [Doc.
# 45-2] at 32.)
Defendant Karen Krasicky has been Chief of the Plymouth Police
Department since April 2005. (Krasicky Aff. ¶ 2, Ex. 2 to Def.’s 56(a)1 Stmt.) Aside from
Chief Krasicky, Officer Parrott is the only female police officer in the Department.
(Ugliarolo Aff., Ex. 3 to Pl.’s Loc. R. 56(a)2 Stmt. [Doc. # 55-1] ¶ 4.)
In November 2009, Officer Parrott was subject to an internal investigation for
alleged off-duty misconduct and was required to continue working while this
investigation unfolded rather than being placed on paid administrative leave. She claims
that three similarly situated male officers who were being investigated for misconduct
were placed on administrative leave while being investigated, allowing them to prepare
their defenses while continuing to receive pay and without having to face the distraction
of continuing to work their shifts.1 (Parrott Dep. Tr. 86.)
Officer Parrott contends that Defendant repeatedly referred to her as “that chick
cop” outside of her presence, corroborating the gender-based connotation for the alleged
disparate use of paid administrative leave. (Id. at 105.) Officer Parrott submitted an
affidavit from Sgt. Ugliarolo, who retired from the Plymouth Police Department in April
2011, in which he stated that he “personally heard Chief Krasicky refer to Officer Parrott
as ‘chic[k] cop’ on more than one occasion,” although Sgt. Ugliarolo does not provide any
further details about these incidents. (Ugliarolo Aff. ¶ 3.) While the context in which
these comments were allegedly made is unclear, Officer Parrott testified that Chief
Krasicky made these comments sometime between 2007 and 2010. (Parrott Dep. Tr. at
108.) At oral argument, counsel for Officer Parrott confirmed that she was not pursuing
a hostile work environment claim but contends that the disparate treatment regarding
1
These three officers are John D’Aniello, Paul Superant, and Damien Bilotto.
(Pl.’s Am. Response to Def.’s First Interrogatories, Ex. 1 to Def.’s Reply [Doc. # 59-1] at
2–3.) Chief Krasicky placed Officer D’Aniello on administrative leave after she learned
that he was “depressed and possibly wanted to harm himself” and because Officer Parrott
had reported on-duty interactions with him that made her uncomfortable after she ended
their non-romantic social relationship. (Krasicky Aff. ¶ 22.) The investigations of
Officers Superant and Bilotto were both criminal in nature and led by outside law
enforcement agencies. In both cases, once the criminal charges were dropped against the
officers, Chief Krasicky returned them to active duty. (Id. ¶¶ 23–24.)
2
paid administrative leave coupled with the “chick cop” comments support an inference of
gender-based discriminatory disparate treatment.2
The internal investigation underlying Officer Parrott’s claimed denial of paid
administrative leave arose from the fallout of an “on and off” romantic relationship that
she had with Juan Maldonado, a Connecticut State Trooper, from September 2006
through May 2009. (See Arbitration Ruling, Town of Plymouth & Plymouth Police
Union (“Arbitration Ruling”), Ex. 5 to Def.’s 56(a)1 Stmt. at 4.) In November 2009, Chief
Krasicky initiated an internal investigation of Officer Parrott for allegedly filing a false
complaint against Mr. Maldonado with the Connecticut State Police, for vandalism to his
property, harassment of his family, and unlawfully accessing motor vehicle registration
records in a state database. (Id. at 8.) The allegations were substantiated in part, and
Chief Krasicky suspended Officer Parrott for ninety day, which a state arbitrator affirmed
in part, reducing the suspension to fifty-five days.3 (Id. at 18.)
2
At oral argument, Plaintiff also confirmed that she was not pursuing claims
related to notification of the investigation, the canine handler position, and her eligibility
for “bonus days off.”
3
In her opposition to summary judgment, Officer Parrott contended for the first
time that her 90-day suspension was an adverse employment action. (Pl.’s Opp’n [Doc.
# 55] at 8.) Generally, “courts will not consider, on a motion for summary judgment,
allegations that were not pleaded in the Complaint and raised for the first time in
opposition to a motion for summary judgment.” Flynn v. New York State Div. of Parole,
620 F. Supp. 2d 463, 485 n.28 (S.D.N.Y. 2009). Plaintiff never pleaded her suspension as
an adverse employment action in the Complaint and did not cite it in response to
Interrogatory Number 2 requesting that Plaintiff “[s]tate all facts and documents in
support” of her allegations of disparate treatment. (Pl.’s Am. Response to Def.’s First
Interrogatories.) Absent any showing of why this claim was not asserted before the
summary judgment motion was filed, this claimed adverse action will not be considered.
3
II.
Discussion4
Officer Parrott’s claim under 42 U.S.C. § 1983 for gender-based discrimination is
analyzed under the same standard as disparate treatment employment discrimination
claims brought under Title VII. See Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir.
2010) (“Both Mr. Ruiz’s Title VII claims and his claims for race and national origin
discrimination under Sections 1981 and 1983 are analyzed under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green.”). The “burden of establishing
a prima facie case of disparate treatment is not onerous,” but requires the plaintiff to
have: (1) been a member of a protected class, (2) performed her job adequately, (3)
suffered an adverse employment action, and (4) suffered the adverse employment action
under conditions giving rise to an inference of discrimination. Tex. Dep. of Com. Affairs
v. Burdine, 450 U.S. 248, 255 (1981).
4
Summary judgment is appropriate where, “resolv[ing] all ambiguities and
draw[ing] all permissible factual inferences in favor of the party against whom summary
judgment is sought,” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008), “the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law,” Fed. R. Civ. P. 56(a). “A dispute regarding a material fact
is genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.
2006) (quotation marks omitted). “The substantive law governing the case will identify
those facts that are material, and ‘[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary
judgment.’” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering a
motion for summary judgment, the Court may consider depositions, documents,
affidavits, interrogatory answers, and other exhibits in the record. Fed. R. Civ. P. 56(c).
4
1.
Adverse Employment Action
Defendant has not disputed the first two elements of Plaintiff’s prima facie case,
but takes aim at the sufficiency of the third element, maintaining that not putting Officer
Parrott on paid administrative leave during the internal investigation of her alleged
conduct vis-à-vis Mr. Maldonado did not constitute an adverse employment action.
(Def.’s Mem. Supp. [Doc. # 53] at 6.)
“A plaintiff sustains an adverse employment action if he or she endures a
‘materially adverse change’ in the terms and conditions of employment.” Galabya v. New
York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). “To be materially adverse a
change in working conditions must be more disruptive than a mere inconvenience or an
alteration of job responsibilities. A materially adverse change might be indicated by a
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular situation.” Id. (internal
citations and quotation marks omitted) (alterations in original).
The Court noted in its Ruling on Defendant’s Motion to Dismiss [Doc. # 33], that
being denied paid leave under the circumstances alleged “is at least plausibly an adverse
employment action,” because “paid leave allows one time and opportunity to defend
against a complaint without suffering income loss or the interference from one’s daily
responsibilities and concerns as an active officer,” awaiting a fully developed record to see
if the action could be proved to be materially adverse. (Id. at 5.) Notwithstanding the
5
opportunity to develop this record, Officer Parrott has not adduced any evidence that
under the circumstances the denial of paid leave was an adverse employment action.5
Officer Parrott offers no evidence that she ever requested to be placed on paid
administrative leave or that the investigation was interfering with her duties in any way or
that her ability to defend herself in the investigation, which led to her suspension, was
compromised by being on duty. (See Krasicky Aff. ¶ 21 (“Officer Parrott never informed
me that the investigation was interfering with her ability to perform her police duties.”);
Pl.’s 56(a)2 Stmt. ¶ 21 (admitting the facts asserted in Krasicky Aff. ¶ 21).) In fact, Officer
Parrott acknowledged that being placed on paid administrative leave could be considered
“disciplinary in nature,” and precludes an officer from earning overtime payments.
(Parrott Dep. Tr. at 131; see also Krasicky Aff. ¶ 21 (“I consider paid administrative leave
to be somewhat punitive in nature and I wanted Officer Parrott to remain active with the
Department and be eligible for overtime opportunities.”).)
At oral argument, Plaintiff’s counsel could cite no case law in support of the
argument that not being placed on administrative leave was an adverse employment
action. Accordingly, Officer Parrott has not demonstrated that being kept on active duty
during the investigation could be proved to be an adverse employment action and thus
5
In the converse situation, the Second Circuit has held that placing an employee
on paid administrative leave during the pendency of an investigation is not an adverse
employment action, because “an employee does not suffer a materially adverse change in
the terms and conditions of employment where the employer merely enforces its
preexisting disciplinary policies in a reasonable manner.” Joseph v. Leavitt, 465 F.3d 87,
91 (2d Cir. 2006).
6
Plaintiff has not met her burden of establishing a prima facie case of gender
discrimination.
III.
Conclusion
For the reasons set forth above, Defendant’s Motion [Doc. # 45] for Summary
Judgment is GRANTED. The Clerk is directed to close this case.
IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 27th day of May, 2014.
7
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