Zagaja v. Village of Freeport, et al
Filing
67
MEMORANDUM AND OPINION. For the reasons stated herein, the Court grants in part and denies in part defendants' motion for summary judgment 29 . The Court grants defendants' motion with respect to (1) plaintiff's claim of gender discri mination as it relates to the female superior officers' locker room and (2) plaintiff's hostile work environment claim. Summary judgment is denied with respect to (1) plaintiff's employment discrimination claims regarding her demotion from Deputy Chief, defendants' failure to promote plaintiff to Assistant Chief, and defendants' failure to promote plaintiff to Chief of Police, and (2) plaintiff's retaliation claim. Hardwick's motion for summary judgment on qualified immunity grounds is also denied. This opinion has been redacted. The unredacted version has been filed under seal. Ordered by Judge Joseph F. Bianco on 11/30/2012. (Samplin, Ilissa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-cv-3660(JFB) (WDW)
_____________________
DEBBIE ZAGAJA
Plaintiff,
VERSUS
VILLAGE OF FREEPORT and ANDREW HARDWICK,
Defendants.
___________________
MEMORANDUM AND ORDER
November 20, 2012
___________________
JOSEPH F. BIANCO, District Judge:
retaliated against in response to her
protected activities under these statutes.
Debbie Zagaja (“plaintiff” or “Zagaja”)
brought this action against the Village of
Freeport (“Village”) and Andrew Hardwick
(“Hardwick”) (collectively, “defendants”),
alleging violations of her constitutional
rights pursuant to 42 U.S.C. § 1983,
employment discrimination on the basis of
gender, race and/or color in violation of
Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., as amended (“Title
VII”) and Article 15 of the Executive Law
of the State of New York §§ 290 and 296
(the
“Human
Rights
Law”),
and
employment discrimination based on race in
violation of 42 U.S.C. § 1981. Plaintiff
claims that she was the subject of gender,
race, and/or color discrimination arising
from
harassment,
a
hostile
work
environment, her demotion, and defendants’
failure to promote her to a command staff
position. Plaintiff also claims that she was
Specifically, plaintiff, who is White and
female, has been working in the Freeport
Police Department (“FPD”) since 1986. She
was promoted to Lieutenant in 2002 and
selected as Deputy Chief in 2007. Plaintiff
claims that “her upwardly mobile career
with the FPD was ripped away from her,
solely based on her race and gender.” (Pl.’s
Mem. at 1.) She asserts that once defendant
Hardwick became Mayor of the Department,
he “instituted a practice of hiring
unqualified, inexperienced minorities and
terminating qualified White and female
employees, including demoting Plaintiff and
skipping her over for promotions within the
command staff.” (Id.) Plaintiff additionally
claims that, “after making numerous
complaints including this lawsuit, [she] has
been subjected to a hostile work
environment and retaliation.” (Id.) In sum,
three on the examination, and Bermudez did,
plaintiff contends that the other two top
scorers were not interested in becoming
Chief of Police, and if the Village had
canvassed those candidates, plaintiff would
have moved up to the top three and been
eligible for the Chief position.
plaintiff contends that she was “(1) qualified
to retain her position as a Deputy Chief but
was demoted because of her race and
gender; (2) was denied a promotion to
Assistant Chief of Police because of her race
and gender and in retaliation for her
complaints; (3) was denied a promotion to
Chief of Police because of her race and
gender;
and
(4)
suffered
gender
discrimination by being denied equal
facilities.” (Id. at 4.)
Third, with respect to the Assistant Chief
of Police position, Hardwick did not
promote plaintiff to that position, but rather
sought to appoint a Black female candidate,
Zina Leftenant, who, according to
Bermudez, was “grossly unqualified” for the
position. There is evidence that the Board
of Trustees refused to promote Leftenant to
a command staff position as Hardwick
wished. As a result, Hardwick created a new
position for Leftenant and the Assistant
Chief Position still remains vacant.
As discussed herein, plaintiff has pointed
to several categories of evidence to support
her
race,
gender,
and
ethnicity
discrimination claims. First, plaintiff points
to the fact that when she was demoted by
Hardwick from the Deputy Chief position,
she was replaced by someone – Miguel
Bermudez, a Hispanic male – who scored 10
points lower than her on the Lieutenant’s
exam. Bermudez even testified that he was
less qualified than plaintiff for the position,
and Assistant Chief Gros stated that, based
upon his thirty-two year career in law
enforcement,
he
believes
plaintiff’s
demotion was “inexplicable.” According to
plaintiff, the Village Attorney advised her
that upon becoming Mayor, Hardwick
wanted to replace the then current command
staff with “his people.”
Fourth, with respect to the Deputy Chief
position, in December 2010, a male
candidate, Raymond Horton, was promoted
to that position after being a Lieutenant for
only eleven days. Prior to the promotion,
Horton sent an email to plaintiff stating,
“YOU’VE BEEN WRONGED” and “I am
currently sickened by the current state of
affairs that has [sic] thrust upon you.”
Horton testified that he was referring to
plaintiff’s removal from the Deputy Chief
position.
Second, with respect to the Chief of
Police position, there is evidence that
Hardwick referred to Bermudez as “Chief,”
even when Bermudez was ineligible for the
position. There is also evidence that efforts
were made, including a lawsuit, to forego or
modify the civil service examination for the
Chief of Police position so that Bermudez
could qualify for appointment to the
position.
Hardwick testified that the
purpose of the lawsuit was to reach minority
candidates for supervisory positions. The
requirements were in fact changed and, as a
result, Bermudez qualified for the position.
Although plaintiff did not score in the top
Fifth, plaintiff has submitted evidence of
other White supervisors who, according to
plaintiff’s evidence, Hardwick replaced with
less qualified minority candidates. This
includes the Superintendent of Buildings,
the Superintendent of Public Works, the
Director of Community Development, the
Assessor, the Research Assistant to the
Board of Trustees, the Director of Human
Resources, and the Treasurer.
Sixth, plaintiff has submitted statistics
showing that since Hardwick’s election as
2
summary judgment as to Hardwick on
qualified immunity grounds. It is axiomatic
that if Hardwick did intentionally
discriminate and retaliate against plaintiff,
he would not be protected by qualified
immunity. However, as discussed herein,
defendants’ summary judgment motion is
granted with respect to the discrimination
claim related to the adequacy of the female
locker room and the hostile work
environment claim.
Mayor in April 2009, one hundred and fifty
employees have been hired. Of the one
hundred and fifty employees hired, only
fifty were White, while ninety-six were
Black or Hispanic, and only fifty-eight were
female, while ninety-two were male.
With respect to her retaliation claims,
plaintiff has pointed to evidence that the
Assistant Chief of Police position still
remains vacant, even though plaintiff is
available and qualifies for the position.
Plaintiff has also pointed out that, when
Bermudez was asked at his deposition why
plaintiff has not been promoted to a
command staff position, he answered that he
no longer trusts plaintiff because of
allegations she made in the complaint she
filed in this case. Bermudez also testified
that he no longer trusts plaintiff because she
tape-recorded conversations without his
knowledge, even though there is evidence
that Horton similarly taped an employee to
protect himself and later became Deputy
Chief. Plaintiff also put forth evidence of
other conduct by the Village, including a
financial background check the Village
conducted of plaintiff, which she asserts is
retaliatory.
I. BACKGROUND
A. Factual Background
The Court has taken the facts set forth
below from the parties’ depositions,
affidavits, exhibits, and respective Rule 56.1
statements of facts. Upon consideration of a
motion for summary judgment, the Court
shall construe the facts in the light most
favorable to the non-moving party. See
Capobianco v. City of New York, 422 F.3d
47, 50 (2d Cir. 2005). Unless otherwise
noted, where a party’s 56.1 statement is
cited, that fact is undisputed or the opposing
party has pointed to no evidence in the
record to contradict it.1
1. Plaintiff’s Early Career With the
Freeport Police Department
Defendants now move for summary
judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. For the reasons
set forth below, as well as orally on the
record on August 13, 2012, the Court grants
in part and denies in part defendants’ motion
for summary judgment.
In particular,
construing the evidence in plaintiff’s favor,
there are disputed issues of material fact
with respect to the discrimination and
retaliation claims that preclude summary
judgment on such claims. In other words, if
plaintiff’s testimony and evidence is
credited and all reasonable inferences are
drawn in her favor, a rational jury could find
in her favor on these claims. Similarly,
those same issues of disputed fact preclude
Plaintiff is a White, female Lieutenant in
the Freeport Police Department. (Defs.’ 56.1
¶ 4.) She began working for the Department
in approximately July 1986, (Id. ¶ 5), after
graduating from SUNY Albany with a
bachelor’s degree in psychology and
sociology. (Valli Declaration (“Valli Decl.”)
Ex. 2, Zagaja Deposition Transcript
(“Zagaja Dep.”) at 8-9.) Plaintiff attained
1
Although the parties’ Rule 56.1 statements
contain specific citations to the record to support
their statements, the Court cites to the Rule 56.1
statements, rather than to the underlying
citations to the record.
3
Woodward also testified that plaintiff often
acted in the role of Assistant Chief in Gros’
absence and in the role of Chief of Police in
Woodward’s absence. (Id. at 26.)
the rank of Sergeant in approximately March
1993. (Defs.’ 56.1 ¶ 6.) Plaintiff took the
Lieutenant’s exam in September 1995 and
was one of the top three scorers. (Valli Decl.
Ex. 11, Letter from Civil Service
Commission.) Plaintiff took the Lieutenant’s
exam in September 2000 and scored number
one. (Valli Decl. Ex. 12, List of Test Scores
from Civil Service Commission.) On July
10, 2002, the certified list of test scores
showed that plaintiff’s number one score on
the Lieutenant’s exam was ten points higher
than Miguel Bermudez and twelve points
higher than Raymond Horton. (Valli Decl.
Ex. 13, Test Scores from Civil Service
Commission.) In August 2002, plaintiff was
promoted to the rank of Lieutenant. (Defs.’
56.1 ¶ 7.)
While the ranks of Lieutenant and
Sergeant are civil service titles, the rank of
Deputy Chief is an in-house designation.
(Defs.’ 56.1 ¶¶ 8, 10). Thus, while plaintiff
served as Deputy Chief, her civil service
rank remained Lieutenant because the
Deputy Chief position is not a recognized
civil service position in Freeport. (Zagaja
Decl. ¶ 46.) Hardwick states that plaintiff’s
in-house designation of Deputy Chief was
governed by a contract. (Hardwick Affidavit
(“Hardwick Aff.”) ¶ 6.) Plaintiff states that
the designation was not governed by a
contract, but rather that the benefits
associated with the designation were
governed by contract. (Zagaja Decl. ¶ 41.)
Plaintiff’s contract expired on February 28,
2010. (Hardwick Aff. ¶ 6.) According to
Hardwick, plaintiff’s contract did not
provide for renewal once it expired, nor did
it provide for plaintiff to remain as Deputy
Chief after February 28, 2010. (Id.) Plaintiff
contends, however, that following the
expiration of her contract, she was to
continue in her position of Deputy Chief or
be promoted within the command staff.
(Zagaja Decl. ¶¶ 41-42, 45.)
At his deposition, the former Chief of
Police, Michael Woodward, testified that at
one point he approached the Mayor and the
Village Board asking that they approve
plaintiff’s promotion to Deputy Chief. (Valli
Decl. Ex. 1, Woodward Deposition
Transcript (“Woodward Dep.”) at 22-23.)
Plaintiff was selected as Deputy Chief in
May 2007. (Defs.’ 56.1 ¶ 9.) Upon her
promotion, plaintiff received a salary
increase, the title of Deputy Chief, a
command staff position, increased benefits,
and increased responsibilities in running the
Department. (Valli Decl. Ex. 19, Freeport
Police Department Personnel Order; Zagaja
Declaration (“Zagaja Decl.”) ¶¶ 60-61.)
According to Woodward, the position of
Deputy Chief is one of the three command
staff positions in the Department, the other
two being Chief of Police and Assistant
Chief of Police. (Valli Decl. Ex. 1,
Woodward Dep. at 16-17.) Woodward
testified that plaintiff was an “excellent”
Deputy Chief, that he had absolutely no
complaints about plaintiff’s work, and that
he could not recall any complaints from
others about plaintiff’s performance in her
role of Deputy Chief. (Id. at 24-25.)
2. Hardwick’s Personnel Changes
In or about April 2009, Hardwick
commenced his term as Mayor of the
Village of Freeport. (Hardwick Aff. ¶¶ 1, 5.)
According to John Maguire, a Village of
Freeport employee, Joseph Madigan was
previously employed by the Village as the
Superintendent of Buildings. (Valli Decl.
Ex. 23, Maguire Aff. ¶ 17.) Madigan held
this position for over a decade, until he was
demoted by Hardwick. (Id.) Hardwick
promoted Richard Brown as the new
4
Research Assistant to the Board of Trustees.
(Valli Decl. Ex. 23, Maguire Aff. ¶¶ 6-9.)
Instead, however, Maguire was relocated in
his position and stripped of all access to
email and internal documentation for the
Village. (Valli Decl. Ex. 25, December 10,
2009 Email from Lieutenant Barella.)
Maguire was replaced with Daihanna
Torres-Lopez, a Hispanic female who,
according to Maguire, previously held the
position of Director of Human Resources
but had to be removed because she was
caught using her Village employment for
personal advancement. (Valli Decl. Ex. 23,
Maguire Aff. ¶ 22.)
Superintendent of Buildings. (Id.) Brown is
a Black male who, according to Woodward,
“probably has more building code violations
than any other house in Freeport.” (Valli
Decl. Ex 1, Woodward Dep. at 136.) Brown
also has a tax lien on his house. (Valli Decl.
Ex. 24, Public Notice of Tax Lien.)
At his deposition, Woodward testified
that Lou DiGrazia was previously employed
as the Superintendent of Public Works.
(Valli Decl. Ex 1, Woodward Dep. at 136.)
According to Woodward, DiGrazia was
replaced by Scott Richardson, a Black male
“who literally went from cutting grass to
becoming the Superintendent of Public
Works almost overnight.” (Id. at 136.)
Raymond Straub was previously
employed by the Village as the Executive
Director of Human Relations. (Valli Decl.
Ex. 6, Byers Deposition Transcript (“Byers
Dep.”) at 68.) He was terminated by
Hardwick and replaced with Torres-Lopez,
who, as noted above, was transferred out of
the position after she was caught using her
position for personal gain. (Valli Decl. Ex.
23, Maguire Aff. ¶ 22.) After Torres-Lopez
was transferred, she was replaced by
Stafford Byers, a Black male, (Valli Decl.
Ex. 6, Byers Dep. at 66), who has been
caught and reprimanded for sleeping on the
job. (Valli Decl. Ex. 5, Colton Deposition
Transcript (“Colton Dep.”) at 94-95.) Byers’
attorney’s license has also been suspended
for
professional
misconduct,
for
mishandling client funds. (Valli Decl. Ex. 6,
Byers Dep. at 8-9.)
According to Maguire, Ellen Kelly,
previously employed as the Director of
Community Development, was asked by
Hardwick’s administration to retire early.
(Valli Decl. Ex. 23, Maguire Aff. ¶ 23.)
Woodward testified that Kelly was replaced
by a Black male. (Valli Decl. Ex. 1,
Woodward Dep. at 137.) According to
Maguire, Norman Wells, the Black male
who replaced Kelly, was a real estate agent
with no experience in community
development work. (Valli Decl. Ex. 23,
Maguire Aff. ¶ 23.)
Bernadine Quinton, a White female, was
previously employed by the Village as an
Assessor. (Valli Decl. Ex. 23, Quinton Aff.
¶¶ 1, 21.) Hardwick replaced her with James
Smith, a Black male. (Id. ¶ 9; Valli Decl.
Ex. 1, Woodward Dep. at 137-38.)
According to Woodward, Quinton was
eventually brought back to the Village to
help with the assessments after she had been
replaced by Smith because Smith could not
handle them. (Id.)
According to Hardwick, Valerie Montes,
a White female, was employed by the
Village as Deputy. She was not promoted to
Treasurer when Vilma Lancester left. (Pl’s.
56.1 ¶ 59.) Hardwick instead hired Ismaela
Hernandez, a Hispanic female. (Valli Decl.
Ex. 3, Hardwick Deposition Transcript
(“Hardwick Dep.”) at 143-48.) At his
deposition, Hardwick acknowledged that
Hernandez was the subject of a criminal
Maguire stated that Hardwick initially
offered him the Chief of Staff position for
the Village with a civil service title of
5
investigation after her appointment because
she contacted a business and used her title to
persuade that business to engage in personal
dealings with her. (Id. at 145.)
because he felt as though “minorities had
not been moving through the ranks as
quickly.” (Valli Decl. Ex. 3, Hardwick Dep.
at 192.)
Since Hardwick became Mayor in April
2009, one hundred and fifty employees,
including both full and part-time employees,
have been hired.2 (Valli Decl. Ex. 22, List of
Hires Since April 2009.) Of the one hundred
and fifty employees, fifty are White and
ninety-six are Black or Hispanic (one
employee identifies as “Other” and three
employees are Multi-racial). (Id.) Fifty-eight
are female, while ninety-two are male.3 (Id.)
3. Plaintiff’s Demotion from Deputy Chief
and Bermudez’s Ascension to the Command
Staff Circle
Upon becoming Mayor, Hardwick
decided that “there was a need to change the
direction of the department.” (Valli Decl.
Ex. 3, Hardwick Dep. at 39.) At his
deposition, Hardwick testified that his desire
was to in fact institute such a change. (Id. at
210). Woodward, a White male, testified
that he was forced to retire as Chief of
Police once Hardwick entered the office.
(Valli Decl. Ex. 1, Woodward Dep. at 60.)
Alfred Gros, also a White male and
previously employed as Assistant Chief of
Police, testified that he too was forced to
retire once Hardwick entered the office.
(Valli Decl. Ex. 23; Gros Aff. ¶¶ 19-21.)
According to plaintiff, Hardwick also
replaced various board members throughout
the Village’s committees. Plaintiff claims
that of the seventeen current board
members, fourteen White members were
replaced by twelve Black or Hispanic
members. (Pl’s. 56.1 ¶¶ 63-64.) At his
deposition, Hardwick testified that “there
needed to be a way to reach minority
candidates . . . for supervisory positions,”
Plaintiff states that, in October 2009,
Colton advised her that Hardwick wanted to
replace the then current command staff with
“his people.” (Zagaja Decl. ¶ 35.) Hardwick
felt that plaintiff was “part of the ‘old
guard’, loyal to the prior administration
which had appointed her to the Deputy
Chief position.” (Hardwick Aff. ¶ 24.)
Plaintiff was informed in October 2009 that
when her contract for Deputy Chief expired
on March 1, 2010, it was not going to be
renewed. (Valli Decl. Ex. 5, Colton Dep. at
45.) At his deposition, Woodward testified
that he felt that the Department would suffer
if plaintiff did not remain in the command
staff. (Valli Decl. Ex. 1, Woodward Dep. at
35.) Thus, according to plaintiff, in
December of 2009, Woodward directed her
to perform Acting Chief of Police functions
while he used his accrued time. (Zagaja
Decl. ¶ 31.) On March 8, 2010, plaintiff was
stripped of her higher rank, benefits, and
2
The statistics regarding employees hired since
April 2009 that plaintiff puts forth in her 56.1
statement differ from those in the underlying
record to which plaintiff cites. Thus, the Court
has utilized the numbers based upon its review
of the underlying data, rather than plaintiff’s
56.1 statement.
3
Plaintiff also put forth the following statistics
regarding employees terminated or separated
since April 2009: (1) sixty-six employees were
terminated or separated; (2) of the sixty-six,
forty-seven are White and nineteen are Black or
Hispanic; and (3) thirty of the sixty-six were
female and thirty-six were male. (Pl’s. 56.1 ¶
61). However, the Court has not been able to
verify these statistics because of unknown
abbreviations in the raw data in the underlying
record. The Court has therefore not relied on
these numbers and, in any event, they are not
necessary to consider for purposes of this motion
because plaintiff has other evidence that is
sufficient to preclude summary judgment.
6
additional income. (Zagaja Decl. ¶ 63.)
Gros, the Assistant Chief of Police at the
time, swore that based on his thirty-two
years of experience in law enforcement,
plaintiff’s “demotion and failure to be
appointed to a command position [was]
inexplicable.” (Valli Dec. Ex. 23, Gros Aff.
¶¶ 26-27.)
position “[b]ecause [he] knew of her from
[his] experience in the Village, and because
she was one of the Deputies. [He] thought
that [Deputies] were Deputies for a reason,
so [he] interviewed them. [He] thought that
was the right thing to do because they were
right there.” (Id. at 60.) Plaintiff states that
Hardwick never asked her about her vision
for Freeport. (Zagaja Decl. ¶ 173.) Hardwick
testified that, with respect to plaintiff’s
vision for the Department, Hardwick
believed plaintiff wanted the same things as
he did. (Valli Decl. Ex. 3, Hardwick Dep. at
51.)
Bermudez was promoted to Sergeant in
1993 and to Lieutenant in 2008. (Valli Decl.
Ex. 4, Bermudez Dep. at 19-20.) At his
deposition, Bermudez testified that he is
Hispanic and considers himself both
Caucasian and a minority. (Id. at 7-8.) At an
event in October 2009, Hardwick called
Bermudez “Chief,” even though Bermudez
did not hold that title at the time. (Id. at 6465.) Plaintiff declares that Bermudez met
with plaintiff in plaintiff’s office on
November 24, 2009, and told plaintiff that
“Hardwick is calling all the shots and wants
[Bermudez] as chief.” (Zagaja Decl. ¶ 86.)
Bermudez told plaintiff that if he became
Chief of Police, he wanted plaintiff as his
second in command. (Id.) At some point in
the fall of 2009, Hardwick directed
Woodward to include Bermudez on emails
regarding command staff decisions. (Valli
Decl. Ex. 3, Hardwick Dep. at 55-56.) In the
fall of 2009, Bermudez purchased materials
to study for the Chief of Police exam.4 (Valli
Decl. Ex. 4, Bermudez Dep. at 65.)
Bermudez also interviewed for the Chief
of Police position with Hardwick and
Deputy Mayor Kennedy. (Valli Decl. Ex. 4,
Bermudez Dep. at 167.) Bermudez testified
that he was asked about the direction in
which he saw the Department going, and
that “most of the conversation was by the
Mayor saying what his vision for Freeport
was.” (Id.) Bermudez testified that when
asked at the interview who he would choose
as his second in command, Bermudez stated
that he would select plaintiff. (Id. at 168.)
Plaintiff testified that Bermudez told her that
he barely spoke during his interview.
(Zagaja Decl. ¶ 170.)
4. Attempts to Forego or Modify the Civil
Service Exam
As noted supra, Woodward retired as
Chief of Police effective November 25,
2010. (Defs.’ 56.1 ¶ 34.) The position of
Chief of Police is a civil service title. (Id.
¶ 35.) Thus, to be eligible for appointment to
the position, one must take the civil service
Chief of Police examination. (Id. ¶ 36.)
On January 14, 2010, plaintiff
interviewed for the Chief of Police position
with Hardwick and Deputy Mayor Kennedy.
(Zagaja Decl. ¶ 169.) Kennedy told plaintiff
during the interview that it was going well
and, sometime after the interview, Kennedy
told Woodward that plaintiff “nailed” the
interview. (Id.) Hardwick testified that he
interviewed plaintiff for the Chief of Police
On January 27, 2010, the Nassau County
Civil Service Commission (“NCCSC”)
issued an announcement regarding the
promotional exam on March 6, 2010 for the
Village of Freeport Chief of Police position.
4
As discussed infra, at that time, under the existing
civil service structure, Bermudez was ineligible for
the Chief position.
7
Decl. Ex. 43, Letters dated February 19,
2010.) Colton informed the NCCSC that any
contrary communication the Commission
may have received from Village personnel
was unauthorized and “does not represent
the position of the Village of Freeport.” (Id.)
(Valli
Decl.
Ex.
41,
NCCSC
Announcement.) On February 5, 2010,
Woodward sent an email to all lieutenants
advising them that Karl Kampe, the Nassau
County Director of Civil Service, had agreed
to grant a waiver, allowing those lieutenants
who did not meet the time in grade
requirement to sit for the Chief of Police
exam with the understanding that they
would have to meet the time in grade
requirement to be promoted if they passed.
(Valli Decl. Ex. 42, February 5, 2010 Email
from Woodward.)
On February 25, 2010, an amendment to
the exam announcement was issued to allow
Lieutenants to sit for the exam even if they
did not meet the time in grade requirement.
(Valli Decl. Ex. 44, Amendment
Announcement.) However, the amendment
still required Lieutenants to satisfy the time
in grade requirement in order to be
promoted if they passed the exam. (Id.)
On February 8, 2010, Douglas Thomas,
Special Counsel for the Village of Freeport,
submitted a request for legislation to
Arndreia Goodby, Executive Assistant to the
Honorable Earlene Hooper, Deputy Speaker
of the Assembly. Thomas requested
legislation to the following effect:
On March 3, 2010, the Village, through
its attorneys, petitioned for injunctive relief
to enjoin the NCCSC from holding and
conducting a promotional exam for Chief of
Police for the Village of Freeport. (Valli
Decl. Ex. 45, Order to Show Cause.) On that
same date, Hardwick submitted an affidavit
in which he swore that he never requested
that NCCSC issue an exam for the Chief of
Police position. (Valli Decl. Ex. 46,
Hardwick Aff. In Support of Order to Show
Cause ¶ 2.) Hardwick declared that it was
Woodward who requested the exam, without
the authorization to do so. (Id. ¶¶ 4-5.) At
his deposition, Hardwick testified that the
purpose of the litigation between the Village
and the NCCSC regarding the Chief of
Police selection process was the following:
Notwithstanding any provision of the
Labor Law, [and] Civil Service
Law . . . any person who has
qualified to be appointed to the
position of superior officer of
lieutenant or above . . . shall be
eligible for appointment to any post
or position of superior officer in the
Incorporated Village of Freeport,
including chief of police, to which he
may be appointed by the executive
and/or legislature of the State of New
York or any of its subdivisions
consisting of any county, town, city,
village, special district or public
authority thereof.
(Valli Decl.
Legislation.)
Ex.
39,
Request
Well, we were pushing to get the law
changed, and we knew that there
needed to be a way to reach minority
candidates in other areas for
supervisory positions. Freeport just
got its first Sergeant a couple of
years ago in the history of the whole
town that’s a minority, I should say
an African American. The selecting
process of officers needs to be
for
On February 19, 2010, both Hardwick
and Colton submitted letters to the NCCSC
advising the Commission that the Village of
Freeport would not be participating in the
Chief of Police promotional exam. (Valli
8
eligible until 2012. (Id.) According to
plaintiff, the three individuals who were
eligible both to sit for the exam and to be
promoted were plaintiff, Wayne Giglio, and
Paul Jurgens. (Zagaja Decl. ¶ 141.) The
three who were eligible to sit for the exam
but were not then eligible for promotion
were Bermudez, Edward Thompson, and
Christopher Barrella. (Id. ¶ 142.) All six
individuals sat for the exam in March 2010.
(Id. ¶ 144.) Plaintiff stated that the eventual
resolution of the lawsuit between NCCSC
and the Village was that “the time in grade
requirement to be promoted was dropped
from 4 years to 1 year.” (Id. ¶ 146.)
changed throughout the state, not just
in Freeport.
(Valli Decl. Ex. 3, Hardwick Dep. at 191.)
However, when asked whether he believed
the selection process in Freeport had
previously been racially biased, Hardwick
replied,
No, I’m not saying that at all. What
I’m saying is, is that for whatever
reason, minorities had not been
moving through the ranks as quickly
Um, the Deputy, she was, for a long
time, the only minority supervisor,
that’s a problem.
5. Bermudez’s Promotion to Deputy Chief
(Id. at 191-92.)
In April 2010, Hardwick selected
Bermudez for the position of Deputy Chief.
(Valli Decl. Ex. 4, Bermudez Dep. at 20.)
When Bermudez became Deputy Chief, he
received a raise, a Department vehicle, a
Department cell phone, higher shift
differential pay, and a plainclothes
allowance. (Id. at 21-24.) Bermudez testified
that he considered his move from Lieutenant
to Deputy Chief to be a promotion. (Id. at
20-21.) Bermudez also testified that at the
time of his promotion to Deputy Chief, he
was less qualified than plaintiff for the
position and had less years of experience
than both Giglio and Jurgens, two other
candidates for the position. (Id. at 72.)
On March 5, 2010, Kampe filed an
affidavit in opposition to the Village’s
petition for injunctive relief. Kampe stated
that he made arrangements for the Chief of
Police exam once he learned that Woodward
was considering retirement within the year,
and that neither Colton nor Hardwick
provided a reason as to why the holding of
the exam would be inappropriate. (Valli
Decl. Ex. 47, Kampe Affidavit in
Opposition to Order to Show Cause ¶¶ 8, 10,
12.)
Kampe stated that the Commission voted
to hold the exam and amended its
announcement for the exam to “extend
eligibility to sit for the examination to all
persons in the promotional line without
regard to the necessary years in service . . .
.” (Id. ¶ 15.) Kampe also noted that, at that
time, six individuals had filled out
applications to sit for the exam. Of those six,
three were not then eligible for promotion
and would need to serve additional time in
their lower grade in order to be promoted.
(Id. ¶ 18.) Of the three requiring additional
time, one would be eligible for promotion in
2011, but the other two would not be
6. Process of Selection of Chief of Police
Plaintiff scored fifth on the exam out of
the five test takers who passed the test.5
(Defs.’ 56.1 ¶ 38.) Pursuant to the civil
service rule of “One of Three,” the Village
could only choose one of the top three
5
Plaintiff states that she scored number five on the
exam due to the settlement of the lawsuit between the
Village and the NCCSC – and that if not for the
settlement, she would have scored in the top three.
(Zagaja Decl. ¶ 148.)
9
As noted supra, both plaintiff and
Bermudez interviewed with Hardwick for
the Chief of Police position. Bermudez was
promoted to Chief of Police in November
2010. (Valli Decl. Ex. 4, Bermudez Dep. at
20.)
scorers on the exam to promote to the Chief
of Police position, unless one of the top
three did not want the position, in which
case the next highest scorer would be
eligible. (Defs.’ 56.1 ¶ 39.) Bermudez
scored in the top three on the exam for Chief
of Police. (Defs.’ 56.1 ¶ 43.)
7. Hardwick’s Attempts to Place Zina
Leftenant in the Command Staff
According to Hardwick, none of the top
three scorers on the exam withdrew from
consideration for appointment to the Chief
of Police position. Hardwick asserts that,
since plaintiff did not score in the top three,
she was not eligible for appointment.
(Hardwick Aff. ¶ 12.) However, according
to plaintiff, Hardwick and the Village of
Freeport did not canvass for the Chief of
Police position. (Zagaja Decl. ¶ 149.)
Plaintiff states that it was common
knowledge in the Department that both
Giglio and Thompson did not want the
position. (Zagaja Decl. ¶ 151.) Hardwick
testified that he did not consider Giglio for
the position. (Valli Decl. Ex 3, Hardwick
Dep. at 198.) Thus, according to plaintiff, if
the Village and Hardwick had canvassed,
Giglio and Thompson would have been
removed from consideration and plaintiff
would have been bumped up to the top
three, making her eligible for the Chief of
Police position. (Zagaja Decl. ¶ 151.)
At his deposition, Hardwick testified that
he wanted Zina Leftenant, a Black, female
Senior Detective, to be in the command
staff. (Valli Decl. Ex. 3, Hardwick Dep. at
42, 209.) Specifically, Hardwick wanted
Leftenant to be Assistant Chief or Deputy
Chief. (Id. at 209-210.) Colton testified that
Hardwick was in fact seeking to promote
Leftenant to Assistant Chief. (Valli Decl.
Ex. 5, Colton Dep. at 99.) Police Officer
Tripani recounted that at a fundraiser in
April 2010, Hardwick exclaimed, “We will
soon have the first African American chief
of police in the Village of Freeport, and
she’s here today.” (Valli Decl. Ex. 8, Tripani
Deposition Transcript (“Tripani Dep.”) at
64-65.) Hardwick was referring to
Leftenant. (Id. at 65.)
At his deposition, Woodward testified
that Leftenant had no administrative
experience, no supervisory experience, and
no experience in running the day-to-day
operations of the Department. (Valli Decl.
Ex. 1, Woodward Dep. at 111-12.)
Woodward also testified that Trustee White
told him that the Board of Trustees refused
to promote Leftenant to a command staff
position. (Id. at 114.) According to
Bermudez,
Leftenant
was
“grossly
unqualified” to be Assistant Chief. (Valli
Decl. Ex. 4, Bermudez Dep. at 111.)
Bermudez claims that he informed
Hardwick that Leftenant was not qualified
for the position. (Id.) When asked whether
Hardwick wanted Leftenant as Assistant
Chief because she was Black, Bermudez
At his deposition, Hardwick testified that
he did not even consider Christopher
Barrella, a White male Lieutenant, for the
Chief of Police position, even though
Barrella was one of the top three scorers on
the exam. (Valli Decl. Ex. 3, Hardwick Dep.
at 267-69.) Hardwick did not remember why
he did not consider Barrella, but testified
that he was not interested in Barrella for the
position because he did not know Barrella
and because certain community leaders
Hardwick spoke to also did not know
Barrella. (Id.)
10
liaison to the community normally fell
within the duties of Assistant Chief of
Police. (Valli Decl. Ex. 1, Woodward Dep.
at 111.) The Assistant Chief position is still
vacant, however, and Hardwick has not
made a decision as to whether he will fill it.
(Valli Decl. Ex. 3, Hardwick Dep. at 27273).
testified that although he could not know all
the reasons Hardwick wanted Leftenant in
the position, he suspects that her race was
one of the reasons, as Harwick had
announced at a social gathering that “he was
promoting a Black female.” (Id. at 111-112.)
Bermudez testified that at one point
Leftenant lost her weapon, a .380. (Id. at
114-15.) When asked about Leftenant losing
her weapon, Woodward testified that an
officer losing his or her weapon would be
considered fairly serious – it would be
considered a violation of the rules and
regulations of the department. (Valli Decl.
Ex. 1, Woodward Dep. at 167-68.) Leftenant
was also removed from a drug enforcement
unit because her husband at the time, a
Corrections Officer, was arrested for selling
or assisting in the transportation of drugs
from an undercover agent. (Valli Decl. Ex.
4, Bermudez Dep. at 115-16.) At his
deposition, Bermudez testified that he does
not know what Hardwick knew about these
issues regarding Leftenant and that he did
not personally inform Hardwick of these
issues, but “just told him [Leftenant] wasn’t
fit for command.” (Id. at 116.) When
Hardwick was asked whether he was aware
of allegations that Leftenant had lost her
weapon, he testified that he was “told that a
gun was taken from [Leftenant’s] home, but
there’s lots of rumors. [He had not] gotten
into all of the rumors that [he] hear[d] about
police officers.” (Valli Decl. Ex. 3,
Hardwick Dep. at 211.)
8. Hardwick’s Appointment of Raymond
Horton as Deputy Chief
At his deposition, Horton testified that in
October or November 2010, Hardwick
spoke to him about being on the command
staff and explained that they “ha[d] to get
Miguel [Bermudez] some help.” (Valli
Decl. Ex. 7, Horton Dep. at 64). Horton was
then promoted from Detective Sergeant to
Lieutenant on December 10, 2010. (Id. at
13.) Horton served as Lieutenant for eleven
days, at which point he was promoted to
Deputy Chief. (Id.)
When asked why he chose Horton as
Deputy Chief, Hardwick testified to the
following: “Because I had known [Horton] a
long time, I actually grew up with him. I
knew of his police background, highly
regarded in the department and in the
community. He was a good choice.” (Valli
Decl. Ex. 3, Hardwick Dep. at 204-05.)
Hardwick also testified that Horton’s family
helped raise him. (Id. at 216.)
On March 7, 2010, prior to his
promotion to Lieutenant and then to Deputy
Chief, Horton wrote the following email to
plaintiff:
Leftenant currently works in the
Community Affairs unit and serves as the
liaison between the Chief of Police and the
Mayor’s office. (Valli Decl. Ex. 7, Horton
Dep. at 41.) Woodward and Horton both
testified that Hardwick created this new title
and position specifically for Leftenant.
(Valli Decl. Ex. 1, Woodward Dep. at 112;
Valli Decl. Ex. 7, Horton Dep. at 41-42.)
Woodward also testified that acting as a
Deb, I will not even waste your time
stating what is painfully obvious.
YOU’VE BEEN WRONGED! Your
ability as a superior/executive officer
and moreover as a person is second
to none! I just felt it was important to
let you know that I am literally
11
Plaintiff found both options to be
unacceptable because they were located
outside the secure police facilities and one
of the options did not even have its own
bathroom. (Valli Decl. Ex. 2, Zagaja Dep. at
146-48; Zagaja Decl. ¶¶ 199-200.) Hardwick
testified that the Village offered to spend as
much money as necessary to create a
separate female superior officers’ locker
room, but that they simply could not put that
locker room near the others due to space
issues. (Valli Decl. Ex. 3, Hardwick Dep. at
223-24.) Colton testified that “the problem
was the Village didn’t have a budget to build
a female supervisor’s locker room. . . . The
Village, at that time, was facing a deficit . . .
. There was no funding for anything during
that time.” (Valli Decl. Ex. 5, Colton Dep. at
105.) Woodward testified that a separate
female superior officers’ locker room was
never built. (Valli Decl. Ex. 1, Woodward
Dep. at 231.)
sickened by the current state of
affairs that has thrust upon you. I
want you to know that I stand
shoulder-to-shoulder with you during
this trying time. You’re in my
prayers. Don’t ever give up.
(Valli Decl. Ex. 35, Email dated March 7,
2010.) At his deposition, Horton explained
that when he wrote that plaintiff had been
wronged, he meant that plaintiff “shouldn’t
have been removed from that position [of
deputy chief], she was a talented person.”
(Valli Decl. Ex. 7, Horton Dep. at 31-32.)
Bermudez also testified that it was “a
mistake” to demote plaintiff. (Valli Decl.
Ex. 4, Bermudez Dep. at 86.)
9. Plaintiff’s Complaints Regarding
Department Issues and Alleged Retaliation
In the Village of Freeport Police
Department, there are currently three locker
rooms: (1) a male subordinate officers’
locker room; (2) a male superior officers’
locker room; and (3) a female locker room
that both subordinate and superior female
officers share. (Valli Decl. Ex. 48, Floor
Plan of Police Station.) Plaintiff states that
in early September 2009, after a discipline
issue with a female subordinate police
officer, she spoke to Woodward and Gros
and requested a separate female superior
officers’ locker room. (Zagaja Decl. ¶ 184.)
In 2009, plaintiff had several conversations
and communications regarding her request
for a separate female superior officers’
locker room. (Id. ¶¶ 205-211.) Plaintiff
states that she continued to make similar
requests in 2010 and 2011. (Id. ¶¶ 205-211.)
Plaintiff was and currently is the only
female superior officer working for the
Department. (Defs.’ 56.1 ¶ 22-23.)
At the end of September 2010, the
officer plaintiff disciplined, Redacte
Redacted, threw out a pair of Magnum work
boots that belonged to plaintiff. (Valli Decl.
Ex. 26, Redacted Discipline Overview;
Zagaja Decl. ¶ 191.) During the following
few weeks, Redacted placed harassing notes
on plaintiff’s locker, notes that plaintiff
declares Redacted even admitted were
directed at plaintiff. (Zagaja Decl. ¶ 196.)
Plaintiff claims that, even though an
independent arbitrator found Redacted guilty
of discarding plaintiff’s boots, the Village
refused to reimburse plaintiff for her loss.
(Id. ¶ 223.) Plaintiff also claims that, on
November 16, 2011, Redacted referred to
her as “Queen B.” (Id. ¶ 202.) Plaintiff
complained to her superior about being
spoken to by a subordinate officer in that
manner, but Redacted was never disciplined.
(Id.) Also, because there was only one
female locker room for both female superior
and female subordinate officers, plaintiff
had no choice but to continue to share a
In
approximately
January
2011,
Bermudez identified two alternative female
locker room options. (Zagaja Decl. ¶ 199.)
12
Bermudez and with performing command
staff duties. (Zagaja Decl. ¶ 218.) Plaintiff
was often asked to work in Bermudez’s
office or former chief Gros’ office, causing
plaintiff humiliation when workers walked
by and saw her in an office she no longer
occupied. (Id.) On June 25, 2010, Bermudez
emailed plaintiff to inform her that she had
been designated as the Department’s records
manager. (Valli Decl. Ex. 58, June 25 Email
From Bermudez.) This new assignment
required plaintiff to do physical labor in the
basement of the Department. (Zagaja Decl.
¶ 219.) Plaintiff claims that she suffered a
painful shoulder injury as a result of this
physical labor, requiring her to participate in
physical therapy for more than six months.
(Id. ¶ 220.)
locker room with Redacted after these
incidents. (Id.)
In 2011, plaintiff requested to work the
night tour. Plaintiff’s squad was changed
and as a result, according to plaintiff, every
one of plaintiff’s shifts overlapped with
Redacted. (Zagaja Decl. ¶ 225.) Plaintiff
states that she complained to Horton and
Bermudez about the overlap, but her squad
was not changed. (Id.) Plaintiff no longer
uses the female locker room at work and
instead stores her personal items in a file
cabinet drawer at the police desk because
she “fear[s] that [Redacted] may again
discard [her] personal property.” (Id.)
Plaintiff states that, in March 2010,
Hardwick initiated an investigation into
discipline applied by the command staff,
including plaintiff, Woodward, and Gros.
(Id. ¶ 215.) Plaintiff also states that
Woodward informed her that Hardwick was
making it a “Black/White thing and
everything with him is race.” (Id.)
According to Colton, in the summer of
2010, the Department had a risk
management company conduct a full
background check of plaintiff in response to
this litigation. (Valli Decl. Ex. 5, Colton
Dep. at 143-44). In February 2011, plaintiff
received an invitation from the Mayor’s
office addressing her as “Deputy Chief,”
despite the fact that she was demoted from
that position one year earlier (Valli Decl.
Ex. 59, Black History Month Event
Invitation Letter; Zagaja Decl. ¶ 222).
Plaintiff alleges that this was done
purposefully “to further humiliate and harass
[her] about [her] demotion.” (Zagaja Decl.
¶ 222.)
At the Village of Freeport Board
Meeting on April 5, 2010, Hardwick asked
Bermudez, on his first day as Deputy Chief,
to sit at the dais. (Id. at ¶ 216.) Plaintiff
claims that, while serving as Deputy Chief,
Hardwick never asked her to sit at the dais.
(Id.) Plaintiff states that, while the general
public was not admitted into the Board
Meeting, Hispanic citizens were invited to
attend, were provided bus service to the
Village hall, and were permitted private
entry through the rear of the building. (Id.)
Plaintiff also states that the cameraman at
the board meeting, who took direction from
Hardwick, “honed in on [her] the entire
night,” which was “harassing and created a
very uncomfortable situation” for plaintiff.
(Id.)
Plaintiff states that, on March 1, 2012,
Bermudez ordered her to serve as a street
supervisor when a Sergeant on her tour was
working light duty. (Id. ¶ 226.) Said
Sergeant would work as watch commander
in plaintiff’s place. (Id.) According to
plaintiff, the command staff had other
options in this situation, such as payback
tours, tour switches, and squad changes.
Instead, plaintiff was directed to assume the
role of street supervisor despite her rank,
Plaintiff states that, four months after her
demotion, she was tasked both with training
13
A. Amongst others.
experience, and tenure. (Id.) Being forced to
relinquish her role of watch commander to a
Sergeant was, in plaintiff’s view, essentially
another demotion. (Id.)
Q. And the fact that the allegation
that you got this position was
because you were minority?
10. Plaintiff’s Husband’s Property
A. Correct.
Plaintiff’s husband owns property in
Freeport and leases a lot on the property for
storage. (Zagaja Decl. ¶ 162.) Plaintiff’s
husband leased the lot to Raymond Broems,
the godfather of the son of Shawn Randall,
an officer with the Village of Freeport
Police Department. (Defs.’ 56.1 ¶¶ 60-62.)
Plaintiff states that, since she brought her
complaint against the Village, the Village
has targeted her husband’s lot. (Zagaja
Decl. ¶ 163.) According to plaintiff, the
Village, by citing inapplicable zoning laws,
forced Broems to leave his lot and no longer
pay rent to plaintiff’s husband. (Id.)
(Id. at 82-83.) Bermudez also testified that
he could no longer trust plaintiff once he
learned that she had tape-recorded
conversations without his knowledge. (Id. at
85.) However, Horton testified at his
deposition that he, like plaintiff, has taped
an employee. (Valli Decl. Ex. 7, Horton
Dep. at 53.) When asked why he taped an
employee
without
the
employee’s
knowledge, Horton testified that he did so to
“protect the department as well as
[himself].” (Id.) Horton became Deputy
Chief.
B. Procedural Background
11. Bermudez’s Reasons for Not Placing
Zagaja on the Command Staff
Plaintiff filed the complaint in this action
on August 11, 2010. Defendants answered
on October 20, 2010. On January 23, 2012,
defendants moved for summary judgment.
Plaintiff submitted her opposition to
defendants’ motion for summary judgment
on March 7, 2012. Defendants submitted
their reply on March 21, 2012. The Court
held oral argument on defendants’ motion
for summary judgment on May 15, 2012.
The Court fully considered the submissions
of the parties and, on August 13, 2012,
issued a detailed oral ruling granting in part,
and denying in part, defendants’ motion. At
the conference, the Court indicated that a
written opinion may follow. This is that
opinion.
At his deposition, Bermudez testified
that he stopped telling Hardwick that he
wanted plaintiff on the command staff once
plaintiff filed her lawsuit. (Valli Decl. Ex. 4,
Bermudez Dep. at 82.) Bermudez felt that
he could no longer trust plaintiff because of
the allegations in her complaint. (Id. at 8283.) Bermudez testified to the following:
Q. After the lawsuit was filed, did
you mention to the Mayor that you
wanted Debbie on your command
staff?
A. No.
Q. Why not?
II. STANDARD OF REVIEW
A. I felt I couldn’t trust her.
The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
Q. That is because of the comment
in the Complaint that you were the
Junior Lieutenant?
14
Corp., 475 U.S. 574, 586-87 (1986)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at
249-50 (citations omitted). Indeed, “the
mere existence of some alleged factual
dispute between the parties” alone will not
defeat a properly supported motion for
summary judgment. Id. at 247-48 (emphasis
in original). Thus, the nonmoving party
may not rest upon mere conclusory
allegations or denials but must set forth
“‘concrete particulars’” showing that a trial
is needed. R.G. Group, Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “merely to
assert a conclusion without supplying
supporting arguments or facts.” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).
grant a motion for summary judgment if
“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). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
The Second Circuit has provided
additional guidance regarding summary
judgment motions in discrimination cases:
We have sometimes noted that an
extra measure of caution is merited
in affirming summary judgment in a
discrimination action because direct
evidence of discriminatory intent is
rare and such intent often must be
inferred
from
circumstantial
evidence found in affidavits and
depositions. See, e.g., Gallo v.
Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).
Nonetheless, “summary judgment
remains available for the dismissal of
discrimination claims in cases
lacking genuine issues of material
fact.” McLee v. Chrysler Corp., 109
Once the moving party has met its
burden, the opposing party “must do more
than simply show that there is some
metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.” Caldarola
v. Calabrese, 298 F.3d 156, 160 (2d Cir.
2002) (emphasis in original) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio
15
F.3d 130, 135 (2d Cir. 1997); see
also Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001) (“It is now beyond cavil
that summary judgment may be
appropriate even in the fact-intensive
context of discrimination cases.”).
2(a). Here, plaintiff claims she has been
discriminated against by defendant on the
basis of her race and gender.
The “ultimate issue” in any employment
discrimination case is whether the plaintiff
has met her burden of proving that the
adverse employment decision was motivated
at least in part by an “impermissible reason,”
i.e., that there was discriminatory intent.
Fields v. N.Y. State Office of Mental
Retardation & Dev’l Disabilities, 115 F.3d
116, 119 (2d Cir. 1997); see Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S.
133, 146 (2000). In the absence of direct
evidence of discrimination, claims for
employment discrimination based on race,
brought pursuant to Section 1981 or
pursuant to Title VII, are analyzed under the
three-step,
burden-shifting
framework
established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973). See Mavrommatis
v. Carey Limousine Westchester, Inc., 476 F.
App’x 462, 464 (2d Cir. 2011) (Section
1981, Title VII and ADEA claims);
Mathirampuzha v. Potter, 548 F.3d 70, 78
(2d Cir. 2008) (Title VII discrimination
claim based on race, color, and national
origin).
Schiano v. Quality Payroll Sys., 445 F.3d
597, 603 (2d Cir. 2006) (quoting Holtz v.
Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.
2001)).
III. DISCUSSION
A. Zagaja’s Employment Discrimination
Claims
Plaintiff alleges that she was subjected to
race and gender discrimination when
defendants (1) demoted plaintiff from
Deputy Chief, (2) failed to promote plaintiff
to Assistant Chief, (3) failed to promote
plaintiff to Chief of Police, and (4) failed to
create a separate female superior officers’
locker room. As set forth below, defendants’
motion for summary judgment is granted
with respect to the locker room claim and is
denied with respect to plaintiff’s other
claims of gender and race discrimination.
1. Applicable Law
First, a plaintiff must establish a prima
facie case of unlawful discrimination by
showing that (1) she is a member of a
protected class (2) who performed her job
Title VII prohibits discrimination against
an employee based on his or her gender,
race, and/or color.6 See 42 U.S.C. § 2000e-
McDonnell Douglas burden-shifting analysis);
Kearney v. Cnty. of Rockland ex rel. Vanderhoef, 185
F. App’x 68, 70 (2d Cir. 2006) (holding that
plaintiff's “equal protection claim pursuant to 42
U.S.C. § 1983 for age-based employment
discrimination fails for the same reasons that her
ADEA and NYSHRL claims fail” under McDonnell
Douglas analysis); Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996)
(explaining that claims brought pursuant to the New
York State Human Rights Laws are governed by the
same standards as claims brought under Title VII).
6
In addition to bringing claims under Title VII,
plaintiff alleges discrimination under 42 U.S.C.
Sections 1981 and 1983, and under the New York
State Human Rights Laws (“NYSHRL”). Claims of
discrimination brought under Section 1981, Section
1983, or NYSHRL are analyzed using the same
framework as claims brought under Title VII, and the
outcome in each instance will be the same as the
outcome under Title VII. See Mavrommatis v. Carey
Limousine Westchester, Inc., 476 F. App’x 462, 464
(2d Cir. 2011) (noting that discrimination claims
brought pursuant to § 1981 are analyzed under the
16
evidence. Such additional evidence may
include direct or circumstantial evidence of
discrimination. Desert Palace, Inc. v. Costa,
539 U.S. 90, 99-101 (2003). It is not
sufficient, however, for a plaintiff merely to
show that he satisfies “McDonnell
Douglas’s minimal requirements of a prima
facie case” and to put forward “evidence
from which a factfinder could find that the
employer’s explanation . . . was false.”
James, 233 F.3d at 157. Instead, the key is
whether there is sufficient evidence in the
record from which a reasonable trier of fact
could find in favor of plaintiff on the
ultimate issue, that is, whether the record
contains sufficient evidence to support an
inference of discrimination. See id.; Connell,
109 F. Supp. 2d at 207-08.
satisfactorily (3) but suffered an adverse
employment action (4) under circumstances
giving rise to an inference of discrimination
(or retaliation). See McDonnell Douglas
Corp., 411 U.S. at 802, 802 n.13 (noting that
elements of prima facie case vary depending
on factual circumstances); Stratton v. Dep’t
for the Aging for the City of N.Y., 132 F.3d
869, 879 (2d Cir. 1997).
Second, if the plaintiff establishes a
prima facie case, “a rebuttable presumption
of discrimination arises and the burden then
shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the
employment decision.” Stratton, 132 F.3d at
879; see Reeves, 530 U.S. at 142-43. The
purpose of this step is “to force the
defendant to give an explanation for its
conduct, in order to prevent employers from
simply remaining silent while the plaintiff
founders on the difficulty of proving
discriminatory intent.” Fisher v. Vassar
Coll., 114 F.3d 1332, 1335-36 (2d Cir.
1997) (en banc), abrogated on other
grounds by Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000).
As the Second Circuit observed in
James, “the way to tell whether a plaintiff’s
case is sufficient to sustain a verdict is to
analyze the particular evidence to determine
whether it reasonably supports an inference
of the facts plaintiff must prove –
particularly discrimination.” 233 F.3d at
157; see also Norton v. Sam’s Club, 145
F.3d 114, 118 (2d Cir. 1998) (“The thick
accretion of cases interpreting this burdenshifting framework should not obscure the
simple principle that lies at the core of antidiscrimination cases. In these, as in most
other cases, the plaintiff has the ultimate
burden of persuasion.”).
Third, if the employer articulates a
nondiscriminatory reason for its actions, the
presumption of discrimination is rebutted
and it “simply drops out of the picture.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993) (citation omitted); see also
James v. N.Y. Racing Ass’n, 233 F.3d 149,
154 (2d Cir. 2000). The burden then shifts
back to the plaintiff to show, without the
benefit of any presumptions, that more
likely than not the employer’s decision was
motivated, at least in part, by a
discriminatory reason. See Fields, 115 F.3d
at 120-21; Connell v. Consol. Edison Co.,
109 F. Supp. 2d 202, 207 (S.D.N.Y. 2000).
2. Analysis
a. Demotion from Deputy Chief
Plaintiff has produced sufficient
evidence to establish a prima facie case of
race and gender discrimination with respect
to defendants’ demotion of plaintiff from
Deputy Chief. Both plaintiff and defendants
agree that plaintiff was qualified for the
position, and that plaintiff is a member of a
protected class based upon her race and
To meet this burden, the plaintiff may
rely on evidence presented to establish his or
her prima facie case as well as additional
17
gender. Plaintiff has also produced evidence,
discussed supra, that she was stripped of her
title, supervisory authority, and command
staff responsibilities, and that she lost both
income and status. Plaintiff has also
produced evidence from which a rational
jury, construing the evidence in the light
most favorable to plaintiff, could find an
inference of discrimination. To the extent
that defendants argue that plaintiff cannot
bring a race discrimination claim because
Bermudez is a White Hispanic male, the
Court treats plaintiff’s claim as also
including one for national origin.7 Plaintiff’s
evidence of discrimination, discussed supra,
includes the following: (1) Colton’s
statement that Hardwick wanted to replace
the then current command staff with “his
people”;
(2)
Hardwick’s
statements
regarding his desire to have more minorities
advancing through the ranks; (3) Bermudez,
a Hispanic male, was promoted to the
Deputy Chief position even though he was
less qualified and experienced than plaintiff;
and (4) Hardwick sought to place Leftenant,
a Black female, in the command staff even
though
Leftenant
was
unqualified.
Construed in the light most favorable to
plaintiff, the evidence in the record is
sufficient to create an inference of
discrimination with respect to plaintiff’s
race, ethnicity, and gender.
Defendants have articulated legitimate,
non-discriminatory reasons for their decision
to demote plaintiff – namely, that plaintiff’s
contract had expired and that Hardwick
wanted someone in the position with new
ideas who was not part of the “old guard.”
However, construing this evidence in the
light most favorable to plaintiff and
considering it in conjunction with plaintiff’s
submitted evidence, including plaintiff’s
sworn statement that her contract for Deputy
Chief only governed her benefits and not her
right to the position, and all of the other
aforementioned evidence put forth by both
parties, there is sufficient evidence in the
record to raise a genuine issue of material
fact as to whether defendants’ proffered
reason for demoting plaintiff constitutes a
pretext for race, ethnicity, and gender
discrimination.
Therefore,
defendants’
motion for summary judgment on this
ground is denied.
b. Failure to Promote to Assistant Chief
Plaintiff has produced sufficient
evidence to establish a prima facie case with
respect to defendants’ failure to promote
plaintiff to Assistant Chief of Police.
Plaintiff has produced evidence of her
qualifications for the position, defendants
agree that plaintiff is a member of a
protected class with respect to her race and
gender, and it is clear that plaintiff is a
member of a protected class with respect to
her ethnicity. Plaintiff has presented
evidence of an adverse employment action –
namely, that she was not promoted to
Assistant Chief and that the position remains
vacant. Plaintiff has produced evidence
giving rise to an inference of discrimination,
including evidence that Hardwick sought to
appoint Leftenant, who Bermudez testified
was grossly unqualified for a command staff
7
At the conference on August 13, 2012, the Court
permitted plaintiff to file an amended complaint
including this claim. Plaintiff filed an amended
complaint on August 21, 2012. The Court notes that
a White non-Hispanic plaintiff can bring a Title VII
claim on the ground that a person who is Hispanic
received a position over the plaintiff. See, e.g.,
Cameron v. Saint Francis Hosp. & Med. Cent., 56 F.
Supp. 2d 235, 238 (D. Conn. 1999) (“In Stern v.
Trustees of Columbia Univ., 131 F.3d 305 (2d Cir.
1997), the Second Circuit held that the plaintiff, a
White American male of Eastern European origin,
had stated a claim for national origin discrimination
under Title VII, when he alleged that he was not
hired as Director of the Spanish Language Program at
Columbia University whereas a male of Hispanic
descent was hired. Plaintiff's claims in this case are
not unlike those in Stern.”).
18
In their briefs, defendants have failed to
articulate a legitimate, non-discriminatory
reason for failing to promote plaintiff to the
Assistant Chief position. Assuming,
however, that defendants posit the same
reasons for failing to promote plaintiff as
they stated in defense of their decision to
demote plaintiff from Deputy Chief, the
Court concludes, on the same grounds as
stated supra, that there is a genuine issue of
material fact as to whether those reasons are
a pretext for race, ethnicity, and gender
discrimination.
Defendants have produced evidence that
plaintiff was not in the top three scorers on
the exam, that plaintiff did not share
Hardwick’s vision for the Department, and
that Bermudez “moved” Hardwick in his
interview, and that plaintiff was therefore
not selected for the Chief of Police position.
Plaintiff, however, has produced evidence
that Hardwick did not canvass the
candidates, that Hardwick did not ask
plaintiff to recount her vision for the
Department during her interview, but simply
testified that plaintiff wanted the same
things as him, and that Bermudez spoke very
little in his interview. This evidence, along
with all of the evidence discussed supra, is
sufficient to create a genuine issue of
material fact as to whether defendants’
proffered reasons for not selecting plaintiff
as Chief of Police are a pretext for
discrimination.
c. Failure to Promote to Police Chief
d. Female Superior Locker Room
Plaintiff has produced sufficient
evidence to establish a prima facie case with
respect to defendants’ failure to promote
plaintiff to Chief of Police. With respect to
plaintiff’s qualifications for the position,
plaintiff has produced evidence that it was
common knowledge that the top two scorers
on the civil service exam did not want the
position of Police Chief, and that if
Hardwick had canvassed the candidates,
plaintiff would have been among the top
three scorers on the exam, and thus eligible
for the position. Plaintiff has produced
evidence that she suffered an adverse
employment action – the failure to be
promoted to chief. In addition, the evidence
discussed supra, including evidence of
Hardwick’s efforts to re-vamp the civil
service exam to allow Bermudez to take the
test and of Hardwick calling Bermudez
“Chief” even before Bermudez was eligible
to sit for the exam, is sufficient to create an
inference of discrimination.
The uncontroverted evidence in the
record demonstrates that there is one female
officers’ locker room in the Village – there
are not separate locker rooms for female
superior officers and female subordinate
officers as there are for those two classes of
male police officers. It is also undisputed
that the Village offered to construct a
separate female superior officers’ locker
room for plaintiff in two locations, the
custodial work area or the building
department, but plaintiff rejected those
offers. Although plaintiff attempts to raise
disparities between the proposed female
superior officers’ locker rooms and the
existing male superior officers’ locker room,
those disparities are not sufficiently adverse
as a matter of law.
position, as Assistant Chief of Police.
Plaintiff has also introduced evidence that
the Board of Trustees would not ratify
Leftenant and that Hardwick consequently
created a new position for her that
encompassed some of the tasks normally
handled by an Assistant Chief.
Even assuming arguendo that the
disparities were materially adverse, the
defendants have articulated legitimate, nondiscriminatory reasons as to why the two
19
2003). “Isolated instances of harassment
ordinarily do not rise to this level.” Cruz v.
Coach Stores, Inc., 202 F.3d 560, 570 (2d
Cir. 2000); Petrisch v. JP Morgan Chase,
789 F. Supp. 2d 437, 451 (S.D.N.Y. 2011)
(same).
options provided to plaintiff were the only
practical options, given space constraints
and cost concerns. Even construing the
evidence in the light most favorable to
plaintiff, no rational jury could conclude that
defendants’ proffered reasons were a pretext
for gender discrimination. Thus, summary
judgment with respect to this portion of the
claim is granted.
The conduct in question must be “severe
or pervasive enough to create an objectively
hostile or abusive work environment, and
the victim must also subjectively perceive
that environment to be abusive.” Feingold v.
New York, 366 F.3d 138, 150 (2d Cir. 2004)
(internal quotation marks omitted). In
addition, a plaintiff seeking to establish a
hostile work environment claim must
demonstrate that “a specific basis exists for
imputing the objectionable conduct to the
employer.” Alfano v. Costello, 294 F.3d 365,
373 (2d Cir. 2002) (internal quotation marks
omitted). Other factors to consider include
“the frequency of the discriminatory
conduct; its severity; whether it is physically
threatening or humiliating, or a mere
offensive utterance; and whether it
unreasonably interferes with an employee’s
work performance.” Terry, 336 F.3d at 148.
The Second Circuit has noted, however, that
“[w]hile the standard for establishing a
hostile work environment is high, . . . . [t]he
environment need not be ‘unendurable’ or
‘intolerable.’” Id. (quoting Whidbee v.
Garzarelli Food Specialties, Inc., 223 F.3d
62, 70 (2d Cir. 2000)). Moreover, although a
hostile work environment generally consists
of “continuous and concerted” conduct, “a
single act can create a hostile work
environment if it in fact works a
transformation of the plaintiff’s workplace.”
Feingold, 366 F.3d at 150 (internal
quotations marks omitted).
B. Zagaja’s Hostile Work Environment
Claim
Plaintiff has also asserted a hostile work
environment claim on the basis of race and
gender. For the reasons set forth below,
summary judgment in favor of the
defendants is granted with respect to this
claim.
1. Applicable Law
Defendants argue that the complaint fails
to state a plausible hostile work environment
claim under Title VII and the NYSHRL
because the allegedly hostile conduct, even
if true, cannot support a hostile work
environment claim as a matter of law
because it was not sufficiently severe or
pervasive. (Def.’s Br. at 6-9.) As set forth
below, the Court agrees. Although plaintiff
correctly notes that a single act can be
severe enough under certain circumstances
to create a hostile work environment (Pl.’s
Opp. at 8-9), that is not the case here.
Under Title VII, a hostile work
environment is established by a plaintiff
showing that her workplace was “permeated
with ‘discriminatory intimidation, ridicule,
and insult . . . that is sufficiently severe or
pervasive to alter the conditions of the
victim's employment and create an abusive
working environment.’” Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000)
(quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)); accord Terry v.
Ashcroft, 336 F.3d 128, 147–48 (2d Cir.
The standard that governs hostile work
environment claims brought under Title VII
also governs hostile work environment
claims brought under the NYSHRL. See,
e.g., Cruz, 202 F.3d at 565 n.1 (explaining
20
judgment with respect
retaliation claim is denied.
that the analysis of claims brought under the
state human rights laws is the same as the
analysis used in Title VII claims); Collier v.
Boymelgreen Developers, No. 06–CV–5425
(SJ), 2007 WL 1452915, at *4 (E.D.N.Y.
May 17, 2007) (“The Court’s consideration
of claims brought under [NYSHRL] [ ]
parallels the analysis used for Title VII
claims.”).
to
plaintiff’s
1. Applicable Law
The McDonnell Douglas burden shifting
analysis also applies to plaintiff’s retaliation
claims under Title VII. See Terry v.
Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003)
(“The McDonnell Douglas burden shifting
analysis used in claims of discrimination in
violation of Title VII also applies to
retaliation claims brought pursuant to Title
VII. . . . The same standards and burdens
apply to claims of retaliation in violation of
the ADEA.” (citations omitted)).
2. Analysis
Although plaintiff asserts that a hostile
work environment existed in a one-sentence,
conclusory manner, (Pl.’s Opp. at 23), the
Court has fully considered all of the
evidence in the record with respect to this
claim. Plaintiff has not produced evidence of
conduct based upon race, ethnicity, or
gender apart from the discrete acts of
alleged discrimination with respect to the
individual claims discussed supra. There is
no evidence of comments, actions, or
conduct attributable to race, ethnicity, or
gender sufficient to rise to the level of a
hostile work environment, and no rational
jury could conclude otherwise.
Under Title VII, it is unlawful “for an
employer to discriminate against any of his
employees . . . because [the employee] has
opposed any practice made an unlawful
employment practice by [Title VII].” 42
U.S.C. § 2000e-3(a). To establish a prima
facie case of retaliation, a plaintiff must
show that (1) he or she engaged in a
protected activity; (2) defendant was aware
of that activity; (3) plaintiff suffered an
adverse employment action; and (4) there
was a causal connection between the
protected activity and the adverse
employment action. Distasio v. Perkin
Elmer Corp., 157 F.3d 55, 66 (2d Cir.
1998); see Terry v. Ashcroft, 336 F.3d 128,
141 (2d Cir. 2003). An employment action
is considered adverse if “the employer’s
actions . . . could well dissuade a reasonable
worker from making or supporting a charge
of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
Although plaintiff has pointed to
evidence of disagreement with her coworkers, including Redacted, disagreement
with co-workers is not enough to satisfy the
requirements of a hostile work environment
claim. Plaintiff has also produced evidence
with respect to Redacted throwing out
plaintiff’s boots and the Village failing to
consequently discipline Redacted, but these
acts are not sufficiently severe or pervasive
enough for a rational jury to find that a
hostile work environment existed.
Under this framework, “[a] plaintiff
must establish a prima facie case; the
employer
must
offer
through
the
introduction of admissible evidence a
legitimate non-discriminatory reason for the
[adverse action]; and the plaintiff must then
produce evidence and carry the burden of
C. Zagaja’s Retaliation Claim
Plaintiff has also asserted a retaliation
claim with respect to various actions taken
by defendants. For the reasons set forth
below, defendants’ motion for summary
21
persuasion that the proffered reason is a
pretext.” Sista v. CDC Ixis N. Am., Inc., 445
F.3d 161, 169 (2d Cir. 2006) (citing Heyman
v. Queens Vill. Comm. for Mental Health for
Jamaica Cmty. Adolescent Program, Inc.,
198 F.3d 68, 72 (2d Cir. 1999)). “Title VII
is violated when a retaliatory motive plays a
part in adverse employment actions toward
an employee, whether or not it was the sole
cause.” Terry, 336 F.3d at 140-41 (internal
quotations and citations omitted).
also produced evidence that shows a causal
connection between her protected activity in
filing the instant lawsuit and defendants’
failure to promote her to Assistant Chief.
For example, Bermudez testified that he
stopped recommending that plaintiff be
promoted when he decided that he could no
longer “trust” plaintiff because of the
allegations made in her complaint. Though
defendants argue that plaintiff has not been
promoted to a command staff position
because she taped conversations with
employees without their knowledge,
plaintiff has produced evidence that Horton
similarly taped conversations and was
nevertheless promoted to Deputy Chief.
Plaintiff has produced sufficient evidence to
create a disputed issue of fact as to whether
defendants’ proffered reason for declining to
promote plaintiff is a pretext for retaliation.
As noted above, it is well settled that if a
retaliatory motive played a part in the
adverse employment actions, even if it was
not the sole cause, the law is violated.
Sumner v. U.S. Postal Serv., 899 F.2d 203,
209 (2d Cir. 1990) (citing Davis v. State
Univ. of N.Y., 802 F.2d 638, 642 (2d Cir.
1986)); De Cintio v. Westchester Cnty. Med.
Ctr., 821 F.2d 111, 116 n.8 (2d Cir. 1987).
Likewise, if the employer was at all
motivated by retaliatory animus, the law is
violated even if there were objectively valid
grounds for the adverse employment action.
Sumner, 899 F.23d at 209. A plaintiff may
establish a causal connection between the
protected activity and the adverse
employment action either through direct
evidence of retaliatory animus, or by
circumstantial evidence. Id.
For the reasons set forth above,
summary judgment is granted in defendants’
favor with respect to (1) plaintiff’s
employment discrimination claim regarding
the female superior officers’ locker room
and (2) plaintiff’s hostile work environment
claim. Summary judgment is denied with
respect to (1) plaintiff’s employment
discrimination
claims
regarding
her
demotion from Deputy Chief, defendants’
failure to promote plaintiff to Assistant
Chief, and defendants’ failure to promote
plaintiff to Chief of Police, and (2)
plaintiff’s retaliation claim.9
2. Analysis
Plaintiff has produced evidence that she
engaged in protected activity both in
complaining about the shared female
officers’ locker room and in filing this
lawsuit. Plaintiff has also produced evidence
that defendants were aware of this activity.
Plaintiff has produced evidence of an
adverse employment action, in that she has
not been promoted to a command staff
position, among other things.8 Plaintiff has
However, as the Court has determined that plaintiff’s
retaliation claim must go forward based on the failure
to promote to Assistant Chief, the Court need not
analyze each action.
9
Defendants argue that plaintiff’s Title VII claims
against Hardwick must be dismissed because there is
no individual liability under Title VII. The Court
agrees that there is no individual liability under Title
VII. Therefore, any claims under Title VII against
Hardwick must be dismissed. Wrighten v. Glowski,
232 F.3d 119, 120 (2d Cir. 2000) (affirming dismissal
of Title VII claims against individual defendants,
8
Plaintiff also alleges other adverse employment
action as resulted from her protected activity.
22
D. Qualified Immunity
the law is defined with reasonable clarity,
(2) the Supreme Court or the Second Circuit
has recognized the right, and (3) a
reasonable
defendant
would
have
understood from the existing law that his
conduct was unlawful.” Luna v. Pico, 356
F.3d 481, 490 (2d Cir. 2004) (quoting
Anderson v. Recore, 317 F.3d 194, 197 (2d
Cir. 2003)). This analysis “must be
undertaken in light of the specific context of
the case, not as a broad general proposition.”
Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (internal citations omitted).
Hardwick argues, in the alternative, that
he is entitled to qualified immunity with
respect to plaintiff’s Section 1981, Section
1983, and NYSHRL claims. For the reasons
set forth below, however, the Court denies
summary judgment on this ground because
disputed issues of fact exist that must be
resolved before the issue of qualified
immunity may be decided in this case. As
discussed in length supra, in relation to
plaintiff’s discrimination and retaliation
claims, the Court finds that plaintiff has
sufficiently set forth evidence from which a
rational jury could, if they were to accept the
evidence as true and draw all reasonable
inferences in plaintiff’s favor, find
intentional discrimination and retaliation.
Thus, the disputed issues of fact that exist
with respect to the discrimination and
retaliation claims also preclude summary
judgment with respect to Hardwick on
qualified immunity grounds.
Here, if the factual disputes are all
resolved in plaintiff’s favor and the jury
concludes that Hardwick intentionally
discriminated against plaintiff and retaliated
against her in violation of Section 1981,
Section 1983, and the NYSHRL in the
manner described by plaintiff, qualified
immunity would not protect Hardwick. See,
e.g., Kercado-Clymer v. City of Amsterdam,
370 F. App’x 238, 242 (2d Cir. 2010)
(denying
individual
defendant’s
interlocutory appeal on qualified immunity
grounds with respect to plaintiff’s retaliation
claim where plaintiff established prima facie
case of retaliation and the right to be free
from retaliation was clearly established at
the time of the adverse employment action);
Back v. Hastings on Hudson Union Free
Sch. Dist., 365 F.3d 107, 130 (2d Cir. 2004)
(“We find that the two remaining individual
defendants in this case are not entitled to
qualified immunity. It was eminently clear
by 2001, when the alleged discrimination
took place, both that individuals have a
constitutional right to be free from sex
discrimination, and that adverse actions
taken on the basis of gender stereotypes can
constitute sex discrimination.”); Griffin v.
New York, 122 F. App’x 533, 534-35 (2d
Cir. 2004) (dismissing interlocutory appeal
from a denial of qualified immunity where
plaintiff
produced
evidence
of
discrimination that violated plaintiff’s right
“Qualified immunity shields government
officials performing discretionary functions
‘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.’” Zellner v. Summerlin, 494 F.3d
344, 367 (2d Cir. 2007) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982));
Mandell v. County of Suffolk, 316 F.3d 368,
385 (2d Cir. 2003). The Second Circuit has
held that “a right is clearly established if (1)
“because individuals are not subject to liability under
Title VII”); Everson v. N.Y.C. Transit Auth., No. 02CV-1121 (ENV), 2007 WL 539159, at *18 (E.D.N.Y.
Feb. 16, 2007) (dismissing Title VII claims against
individual supervisor defendants); Copeland v.
Rosen, 38 F. Supp. 2d 298, 302 (S.D.N.Y. 1999)
(“[I]ndividual employees may not be held personally
liable under Title VII, even if they are supervisory
personnel with the power to hire and fire other
employees.”).
23
***
“to be free from discrimination and
retaliation in the workplace” based on race);
see generally Iqbal v. Hasty, 490 F.3d 143,
174 (2d Cir. 2007) (concluding that
plaintiff’s racial, ethnic, and religious
discrimination claims could not be
dismissed on qualified immunity grounds
given that the allegations in plaintiff’s
complaint were sufficient to state a claim of
animus-based discrimination). Therefore,
summary judgment for Hardwick on
qualified immunity grounds, with respect to
plaintiff’s Section 1981, Section 1983 and
NYSHRL claims, is unwarranted.
Plaintiff is represented by Robert John Valli,
Jr., Aneeba Rehman, and Sara Wyn Kane,
Valli Kane & Vagnini LLP, 600 Old
Country Road, Suite 519, Garden City, N.Y.
11530. The attorneys for the defendants are
Stanley A. Camhi, Christopher D. Palmieri,
and Jessica M. Baquet, Jaspan Schlesinger
LLP, 300 Garden City Plaza, Garden City,
N.Y. 11530.
IV. CONCLUSION
For the foregoing reasons, the Court
grants in part and denies in part defendants’
motion for summary judgment. The Court
grants defendants’ motion with respect to (1)
plaintiff’s claim of gender discrimination as
it relates to the female superior officers’
locker room and (2) plaintiff’s hostile work
environment claim. Summary judgment is
denied with respect to (1) plaintiff’s
employment discrimination claims regarding
her demotion from Deputy Chief,
defendants’ failure to promote plaintiff to
Assistant Chief, and defendants’ failure to
promote plaintiff to Chief of Police, and (2)
plaintiff’s retaliation claim. Hardwick’s
motion for summary judgment on qualified
immunity grounds is also denied.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: November 20, 2012
Central Islip, NY
24
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