Lee v. City of Syracuse, et al

Filing 137

MEMORANDUM-DECISION & ORDER: that deft Syracuse Police Defts motions for summary judgment are GRANTED for all of pltfs claims, and all claims against the Syracuse Police Dept are DISMISSED; the individual defts motions for summary judgment for pltfs Title VII claims are GRANTED, and pltfs Title VII claims against individual defts are DISMISSED; Deft City of Syracuses motion for summary judgment for pltfs Title VII claims is GRANTED in Part and DENIED in part; The individual defts motions for sum mary judgment for pltfs ADA claims are GRANTED, and pltfs ADA claims against individual defts are DISMISSED; Deft City of Syracuses motion for summary judgment for pltfs ADA claims is GRANTED in part and DENIED in part; Defts motions for summary judg ment for pltfs 1983 claims are GRANTED in part and DENIED in part; Defts motions for summary judgment for pltfs EPA claims are GRANTED, and pltfs EPA claims against all defts are DISMISSED; Defts motions for summary judgment for pltfs NYHRL claims ar e GRANTED in part and DENIED in part; Defts motions for summary judgment for pltfs breach of contract claims are GRANTED, and pltfs breach of contract claims against all defts are DISMISSED; The Second, Fifth, Sixth, and Eighth causes of action in Su it I and the First Second, Fifth, Sixth, Eighth, and Tenth Causes of Action in Suit II are DISMISSED in their entirety; Both complaints in their entirety are DISMISSED against defts the Syracuse Police Department, Michael Kerwin, Thomas Galvin, John Falge, Mark McArdle, Captain Ronald Pugh, Daniel Boyle, Deputy Chief Hanna, John Kaufman, Dennis Duval, Gary Miguel, Steve Thompson, Michael Rathbun, and Richard Douglas. The following issues remain to be resolved at trial: (1) liability and damages, if any, against the City of Syracuse for pltfs Title VII retaliation claim arising out of conduct after May 24, 2005 (third cause of action in Suit II); (2) liability and damages, if any, against the City of Syracuse for pltfs Title I ADA claim (fou rth cause of action in Suit I); (3) liability and damages, if any, against the City of Syracuse for pltfs 1983 claims arising under the First Amendment (seventh cause of action in Suit I and fourth and ninth causes of action in Suit II); (4) liabilit y and damages, if any, against deft Michael Heenan for pltfs 1983 claims arising under the First Amendment (fourth and ninth causes of action in Suit II); and (5) liability and damages, if any, against deft City of Syracuse and deft Michael Heenan for pltfs NYHRL claims for retaliation (seventh cause of action in Suit II). Signed by Judge David N. Hurd on 3/25/2009. (see)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -----------------------------------KATHERINE J. LEE, Plaintiff, vs. CITY OF SYRACUSE; CITY OF SYRACUSE POLICE DEPARTMENT; CHIEF OF POLICE DENNIS DUVAL, in his individual and official capacity; FORMER CHIEF OF POLICE JOHN FALGE, in his individual and official capacity; MICHAEL KERWIN, in his individual and official capacity; MARK McARDLE, in his individual and official capacity; CAPTAIN PUGH, in his individual and official capacity; DAN BOYLE, in his individual and official capacity; DEPUTY CHIEF HANNA, in his individual and official capacity; JOHN KAUFFMAN, in his individual and official capacity; CAPTAIN THOMAS GALVIN, in his individual and official capacity, Defendants. --------------------------------------KATHERINE J. LEE, Plaintiff, vs. CITY OF SYRACUSE; CITY OF SYRACUSE POLICE DEPARTMENT; CHIEF OF POLICE GARY MIGUEL, in his individual and official capacity; STEVEN THOMPSON, in his individual capacity; MICHAEL KERWIN, in his individual and official capacity; CAPTAIN THOMAS GALVIN, in his individual and official capacity; MICHAEL RATHBUN, in his individual capacity; RICHARD DOUGLAS, in his individual and official capacity; and MICHAEL HEENAN, in his individual and official capacity, Defendants. ----------------------------------5:06-CV-949 (Suit II) 5:03-CV-1329 (Suit I)

APPEARANCES: BOSMAN LAW OFFICE Attorney for Plaintiff 6599 Martin Street Rome, NY 13440 CORPORATION COUNSEL CITY OF SYRACUSE Attorneys for the Defendants 233 East Washington Street Room 301 City Hall Syracuse, NY 13202 HANCOCK, ESTABROOK LAW FIRM Attorneys for Defendant Douglas 1500 AXA Tower I Syracuse, NY 13221

OF COUNSEL: A.J. BOSMAN, ESQ.

JOSEPH FRANCIS BERGH, ESQ. ROBERT P. STAMEY, ESQ

JOHN G. POWERS, ESQ. LINDSEY H. HAZELTON, ESQ.

DAVID N. HURD United States District Judge

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TABLE OF CONTENTS I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 5 II. FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 6 III. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 15 A. Summary Judgment Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 15 B. Statement of Material Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 C. City of Syracuse Police Department (Suits I and II). . . . . . . . . . . . . . . . . - 19 D. Title VII (Suit II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 1. Individual Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 2. Gender Discrimination (First Cause of Action in Suit II).. . . . . - 20 a. Overtime Assignment. . . . . . . . . . . . . . . . . . . . . . - 22 b. Use of Work-Time to Attend Appointments. . . . - 23 c. Discipline for Violation of SPD Rules. . . . . . . . . - 23 3. Retaliation (Third Cause of Action in Suit II). . . . . . . . . . . . . . . - 27 4. Hostile Work Environment (Second Cause of Action in Suit II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 E. Americans with Disabilities Act (Fourth Cause of Action in Suit I). . . . - 34 1. Individual Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 2. Title I Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 3. Title II Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 38 F. Section 1983 (Suits I and II) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 39 1. Equal Protection Claims (Sixth Cause of Action in Suit I and Fourth and Fifth Causes of Action in Suit II) . . . . . . . . . . . - 40 -3-

2. Conspiracy (Tenth Cause of Action in Suit II) .. . . . . . . . . . . . . - 40 3. First Amendment (Seventh Cause of Action in Suit I and Fourth and Ninth Causes of Action in Suit II). . . . . . . . . . . . . . - 41 a. Individual Defendants and Qualified Immunity. - 41 b. Municipal Liability . . . . . . . . . . . . . . . . . . . . . . . . - 43 G. Equal Pay Act (Second Cause of Action Suit I and Sixth Cause of Action Suit II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 44 H. New York Human Rights Law (Fifth Cause of Action in Suit I and Seventh Cause of Action in Suit II) . . . . . . . . . . . . . . . . . . . . . . . . . . - 45 1. Notice of Claim Requirement for NYHRL Claims.. . . . . . . . . . . - 46 2. Standard of Review and Statute of Limitations for NYHRL Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 46 3. Gender Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 47 a. Overtime Assignments. . . . . . . . . . . . . . . . . . . . . - 48 b. Seizure of Plaintiff's Weapon.. . . . . . . . . . . . . . . - 48 c. Medical Evaluations and Request for Medical Records. . . . . . . . . . . . . . . . . . . . . . . . . . - 49 d. Disciplinary Actions Taken Towards Plaintiff. . - 49 4. Retaliation Claims (Suit II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 49 5. Hostile Work Environment Claim (Suit II) . . . . . . . . . . . . . . . . . - 50 6. Individual Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 50 7. Work Environment, Retaliation, and Disability Discrimination (Suit I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 50 I. Breach of Contract Claim (Eighth Cause of Action in Suits I and II). . . - 51 IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -4-

MEMORANDUM-DECISION and ORDER I. INTRODUCTION Plaintiff Katherine Lee ("plaintiff"), a police officer with the Syracuse Police Department ("SPD"), commenced actions on October 31, 2003 ("Suit I" or "5:03-CV-1329") and August 4, 2006 ("Suit II" or "5:06-CV-949") against the City of Syracuse, the SPD, and a number of plaintiff's supervisors and fellow employees.1 Defendants City of Syracuse, the SPD, Michael Kerwin, and Thomas Galvin are sued in both actions. Defendants John Falge, Mark McArdle, Captain Ronald Pugh, Daniel Boyle, Deputy Chief Hanna, John Kaufman, and Dennis Duval are named in Suit I only. Defendants Gary Miguel, Steve Thompson, Michael Rathbun, Richard Douglas,2 and Michael Heenan are named in Suit II only. Plaintiff's claims were brought pursuant to Title VII of the Civil Rights Acts of 1964 and 1991, the Americans with Disabilities Act, the Equal Pay Act, 42 U.S.C. § 1983, the New York Human Rights Law ("NYHRL"), and state common law. Plaintiff's Title VII claims for discrimination and retaliation in Suit I were dismissed. See Lee v. City of Syracuse, No. 5:03-CV-1329, slip op. at 6-9 (N.D.N.Y. Feb. 15, 2005), Dkt. No. 33 (dismissing plaintiff's first and third causes of action). Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56 for the remaining claims in Suit I.

The individual defendants serve different roles at the SPD. Defendants Duval, Falge, Miguel, and Thompson were Chief of Police. Defendants Boyle, Hanna, and Heenan were Deputy Chiefs. Defendant Kerwin was a Captain and/or Inspector. Defendants Pugh, Galvin, and Rathbun were Captains. Defendant McArdle was a supervisor. Defendants Kaufman and Douglas were fellow police officers.
1

Defendant Douglas is represented by separate counsel. Where his arguments address claims that are viable, they will be addressed independently. However, where the arguments made by defendants in general are sufficient to address the claims again st defendant Douglas, his separate arguments will not be addressed.
2

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Defendants also move for summary judgement for all causes of action in Suit II. Plaintiff opposes defendants' motions.3 Oral arguments were heard on February 8, 2008 for Suit I and on June 13, 2008 for Suit II. Decision was reserved for both motions. Because these actions involve common questions of law and fact, they are now consolidated pursuant to Federal Rule of Civil Procedure 42(a). The extensive discovery involved in these two suits, the number of causes of actions, and deficient citations to the record have caused the delay in issuing this opinion. II. FACTS Plaintiff is a member of the SPD and has been employed there since 1989. Plaintiff was on medical leave from November 15, 2000 until May 28, 2001. Plaintiff returned to work in May 2001 and remained on light duty until September 2002. On September 26, 2002, plaintiff was placed on administrative leave. Plaintiff remained on administrative leave until June 2003 when she returned to full-duty. On September 1, 2006, plaintiff was placed on medical leave for neck and back injuries related to an on-duty car accident that occurred in May of 2004, and although still employed as an SPD police officer, she has not returned to work as stated in her affidavit dated January 22, 2008. As a police officer, plaintiff was paid at the same wage rate as other police officers of the same rank and experience. Plaintiff was also paid when she was on medical and administrative leave, although she could not work overtime when she was on leave because her secondary work permits were revoked.

Plaintiff also includes in her motion papers a request for sanctions and attorneys' fees or an order compelling discovery. This is not the proper method for seekin g compliance with discovery and will not be addressed.
3

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On November 11, 2000, a physical altercation occurred between plaintiff and defendant Kaufman in the Town of La Fayette while they were off-duty. Plaintiff called the New York State Police but did not have defendant Kaufman arrested. Plaintiff was transferred from the Second Platoon to the First Platoon on November 14, 2000. On November 15, 2000, plaintiff was relieved of her gun. That same day, plaintiff was examined by Dr. Saundra Barnett-Reyes, a private psychiatrist. Dr. Barnett-Reyes found plaintiff incapacitated due to depression and anxiety secondary to domestic assault. Dr. BarnettReyes sent a facsimile to the Personnel Division stating that plaintiff should remain on medical leave from November 15, 2000 until November 29, 2000. On November 28, 2000, Dr. Barnett-Reyes sent another letter to the Personnel Division stating that plaintiff should remain on medical leave until January 2, 2001. On December 27, 2000, Dr. Barnett-Reyes faxed a third letter to the Personnel Division stating that plaintiff should not return to work until February 1, 2001. In January 2001, Dr. Barnett-Reyes suggested plaintiff seek a second opinion from Dr. Norman J. Lesswing, a private licensed clinical psychologist. Defendant SPD agreed to this examination and plaintiff was evaluated by Dr. Lesswing. On January 19, 2001, Dr. Barnett-Reyes wrote a letter to the Personnel Division stating that plaintiff could return to work on February 1, 2001. She also stated that plaintiff should work light duty and only during the day. Dr. Lesswing agreed that this was a reasonable accommodation for plaintiff. Dr. Barnett-Reyes's letter did not include any test results or documentation regarding plaintiff's status. Sergeant Susan Adams and Captain John Agne contacted plaintiff and asked her to release her records from Dr. Lesswing. Plaintiff did not release Dr. Lesswing's psychological tests. Because defendants regarded the information provided by Dr. Barnett-Reyes as insufficient to make a determination as to -7-

plaintiff's capacity to return to work, they had Dr. David Simon, a physician from the police department, interview plaintiff. Dr. Barnett-Reyes sent another letter on January 30, 2001 stating why plaintiff was fit to return to light duty during the daytime only. Plaintiff met with Dr. Simon on January 31, 2001. On February 19, 2001, the Personnel Division received Dr. Simon's report regarding plaintiff. In his report, Dr. Simon recommended that plaintiff should not have access to guns because of her medication and that defendant SPD should get an independent opinion from a psychiatrist because Dr. Barnett-Reyes had not provided an opinion of whether plaintiff could handle a gun. Plaintiff was not allowed to work at this time. On February 14, 2001, plaintiff was transferred from the Uniform Bureau, Patrol Division to the Administrative Bureau, Personnel Division. On March 20, 2001, a settlement was agreed on at an arbitration hearing whereby plaintiff was required to submit evidence showing that she had received medical clearance to return to work, and defendant City of Syracuse had the right to accept the evidence or require plaintiff to submit to an additional examination. If medical opinions conflicted, the dispute was to be resolved by either a mutually agreed upon medical provider or the arbitrator. Plaintiff was examined by Dr. Joseph T. Himmelsbach, a private psychologist, on April 20, 2001. Dr. Himmelsbach recommended that plaintiff remain on medical leave for sixty days after which she should be reassessed. Plaintiff returned to light duty in the Records Division on May 28, 2001. Plaintiff's gun was not returned to her. On July 10, 2001, Dr. Himmelsbach examined plaintiff again. He recommended that she remain on light duty for another sixty to ninety days. His letter also stated, "[i]t may also be indicated at this time to review and modify the conditions of her returning to work as regards to weapons and -8-

uniform." Ex. 13 to Pl.'s Aff. in Opp'n to Summ. J., 5:03-CV-1329, Dkt. No. 118-14, 3. Plaintiff continued to work on light duty. On January 9, 2002, Dr. Barnett-Reyes sent a letter to the Personnel Division stating that plaintiff could return to full-duty on January 30, 2002. After reviewing Dr. BarnettReyes's letter on January 23, 2002, Dr. Simon expressed his concerns regarding plaintiff's return to full-duty and recommended an evaluation from an independent psychiatrist. On February 1, 2002, Dr. Simon met with plaintiff. Dr. Simon stated that he was concerned about plaintiff's access to guns because the medications she was taking­Klonopin and Depakote­could affect alertness, judgment, and reaction time. He recommended that plaintiff not have her gun returned at that time. Plaintiff continued to work on light duty until September 2002. On September 26, 2002, plaintiff asserts that defendant Kerwin insisted that plaintiff release her records from Dr. Lesswing. Plaintiff refused to release these records. According to plaintiff, defendant Kerwin threatened to fire her if she did not release the records and ordered her to leave the building. On that day, plaintiff was placed on indefinite administrative leave. On April 24, 2003, plaintiff filed her Equal Employment Opportunity Commission ("EEOC") complaint. Plaintiff brought a grievance against defendant SPD on an unrelated matter through her union, the Syracuse Police Benevolent Association, Inc ("Union"). Defendant SPD's refusal to allow plaintiff to return to full-duty with her gun was discussed at the arbitration hearing. The arbitrator chose a psychiatrist to evaluate plaintiff and determine whether she should have her gun returned. Defendant City of Syracuse agreed to accept the decision of the psychiatrist. On June 16, 2003, plaintiff was evaluated by Dr. Brian Joseph. Dr. Joseph

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determined that plaintiff was fit for duty, capable of handling a gun, and did not need further psychiatric treatment. Plaintiff returned to full-duty with her gun on June 27, 2003. Defendants have a rule requiring a progressive system of discipline. The severity of offenses or whether an individual has been disciplined in the past will generally affect the level of discipline. See Ex. A to Galvin Aff., 5:06-CV-949, Dkt. No. 35-25. The disciplinary records of a number of police officers have been submitted into evidence. See, e.g., Exs. J, L, M, P, Q to Bosman Affirmation, 5:03-CV-1329, Dkt. Nos. 117-11, 117-13, 117-14, 117-17, 117-18, respectively; Exs. B, D, E to Bosman Affirmation, 5:06-CV-949, Dkt. No. 41-2. Plaintiff had a disciplinary record before going on medical leave. In October 2000, plaintiff was disciplined for transmitting personal text messages on police department equipment while on-duty during July through October of that year, including an incident involving officer Peggy Southwell. Plaintiff was penalized ten furlough days and later filed a grievance challenging the SPD's punishment. The penalty was thereafter reduced to a loss of two furlough days, and plaintiff agreed to not pursue legal action for that discipline. On August 22, 200, plaintiff was disciplined for making intimidating remarks about an officer. On June 27, 2003, plaintiff was disciplined for allegedly harassing and threatening defendant Kaufman. Plaintiff lost three furlough days because of this conduct. On the same day, plaintiff was disciplined for insubordination after allegedly failing to obey an order from a sergeant to discontinue making excessive phone calls while on duty. As a result, plaintiff was suspended for ten days without pay. In 2003, at a retirement party for a police officer, defendant Kerwin remarked to other police officers that the president of the Union, Jeff Piedmonte, could not be there - 10 -

because he was trying to persuade Paul Hanley, another Syracuse police officer, not to drive to plaintiff's house. Plaintiff heard about this comment from officer Timothy Gay. Plaintiff alleges that defendant Kerwin insinuated she was having an affair with Paul Hanley. Plaintiff reported the comments to the SPD EEOC officer. Defendants allege they investigated this comment. After interviewing defendant Kerwin, defendant Thompson determined defendant Kerwin did not state that plaintiff and Paul Hanley were having an affair. No discipline was imposed. On May 30, 2004, plaintiff was injured in an on-duty car accident. In December 2004, plaintiff was told that she could no longer go to chiropractor appointments while working overtime. On July 26, 2005, plaintiff was told she could no longer go to physical therapy appointments during work. Plaintiff was also told that she could not use a SPD vehicle to attend medical appointments. On October 7, 2005, plaintiff and defendant Douglas were involved in an incident at Nottingham High School. Plaintiff and defendant Douglas are the same rank. When plaintiff and defendant Douglas arrived, a male student was in handcuffs waiting to be taken to the Onondaga County Justice Center. Defendant Douglas claims that he put the student in the car and waited for plaintiff so she could follow him to the Justice Center. Plaintiff states that defendant Douglas ignored her the entire time and left without her. Defendant Douglas states that plaintiff did not follow him or assist with booking. Plaintiff claims she tried to follow defendant Douglas. For that incident, plaintiff was disciplined on January 5, 2006, directly before or after roll call in the presence of other officers, for not communicating with a fellow officer.

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Plaintiff complained about defendant Douglas's failure to follow protocol in the Nottingham High incident and for derogatory comments he made about her to other officers. Defendant Douglas allegedly stated that plaintiff is "useless," "needs to retire," she has sex with everyone in the department, and she is a "psychotic cunt." Defendant Douglas admitted that he stated plaintiff was useless. None of these comments were said directly to plaintiff. No action was taken against defendant Douglas for these comments after the investigator determined that the complaint was unsubstantiated. No discipline was imposed on defendant Douglas for the incident at Nottingham High School. In December 2005, defendant Galvin asserts that he heard rumors that plaintiff had exposed herself at a SPD Christmas party. Defendant Galvin made inquiries regarding this rumor. Plaintiff received a memorandum asking whether she had exposed herself. Plaintiff denied that this had occurred. Defendant Galvin never found anyone who said that Plaintiff exposed herself. No disciplinary action was taken. On January 22, 2006, plaintiff found a memorandum written by defendant Douglas dated November 16, 2005. This memorandum was posted by someone on a bulletin board. Plaintiff removed the memorandum from the bulletin board. The memorandum was regarding the investigation of the Nottingham High School incident. In the memorandum, defendant Douglas claimed that Sergeant Long was not credible because he wanted to have a personal relationship with plaintiff. Defendant Douglas was suspended for five days without pay for writing the memorandum. On March 20, 2006, plaintiff filed her second EEOC complaint. On or about June 16, 2006, plaintiff's attorney, Ms. A.J. Bosman, mailed a letter to Robert Stamey, Assistant Corporation Counsel for the City of Syracuse. In that letter, Ms. Bosman demanded - 12 -

documents from April 15 and April 16, 2006 relating to an incident with defendant Kaufman. On June 26, defendant Kaufman filed a complaint with Internal Affairs alleging that plaintiff made slanderous statements about him, including that he was involved in illegal gambling and had retained injuries while fighting with one of his children, and that Sergeant Long had illegally investigated him. On June 30, 2006, defendant Galvin sent a memorandum to plaintiff asking her to respond to questions regarding defendant Kaufman's complaint. Plaintiff admits she told someone that defendant Kaufman beats his children. Also on June 30, 2006, Ms. Bosman, sent another letter to Robert Stamey of the Syracuse Corporation Counsel. In that letter, Ms. Bosman threatened to seek sanctions and court intervention because plaintiff had received the memorandum inquiring about whether she had made statements relating to defendant Kaufman. Ms. Bosman claimed that the memorandum was sent in retaliation for the lawful discovery request. Defendant Galvin states that he had not received or heard about the discovery request when he sent the memorandum to plaintiff. Plaintiff alleges that no inquiry would have been made unless she had made the discovery request. Sergeant Long stated in his deposition that in July 2006, defendant Heenan told him "grow a set of balls" and "write [plaintiff] up when she talks about people." Long. Dep. 41:23-25, 42:1-7 (Aug. 1, 2006), 5:06-CV-949, Dkt. No. 40. Defendant Heenan states that any comments he made were a critique of Sergeant Long's supervision of officers. In September 2006, Sergeant Long was disciplined for conducting an illegal investigation of defendant Kaufman. Sergeant Long was not transferred from his position and remains a sergeant assigned to the Patrol Division of the Second Platoon. Sergeant Long has not been

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disciplined since that investigation. Plaintiff will also lose five furlough days for spreading rumors about defendant Kaufman after she returns from medical leave. In August 2006, plaintiff requested a transfer to a position in the city schools. Plaintiff later rescinded this request. According to defendant Kerwin, he asked plaintiff if she rescinded the request because she thought he would transfer her to nights during the summer. In response, plaintiff alleges that defendant Kerwin positioned himself close to her, raised his voice, and asked her if she rescinded the transfer because he would "fuck" with her. Plaintiff denied that this was the reason and submitted a memorandum stating her denial at the request of defendant Kaufman. Defendant Kerwin ordered plaintiff to re-write and file the memorandum again. Sergeant John Kavanagh was present at this exchange and was also ordered to submit a memorandum detailing the conversation. Plaintiff alleges that she has been subject to derogatory comments about her mental acuity, including being called an "EDP" or emotionally disturbed person. At least one ranking officer, defendant Kerwin, has admitted that he thinks that plaintiff is not fit to be a police officer. Plaintiff also states that she has been subject to derogatory gender based comments, including writing in the bathroom and the incidents involving defendant Kerwin and defendant Douglas discussed supra. In addition to the comments that have been communicated personally to her, plaintiff states that she has also heard male officers refer to women officers as "dikes", "lesbians", and "sluts." Plaintiff admits that she has made derogatory comments about other police officers, and Sergeant Long alleges that plaintiff has made such comments. Members of the police department have also witnessed their colleagues viewing pornography at the workplace, but plaintiff neither personally witnessed the pornography nor submitted a complaint regarding the display of such material. - 14 -

On September 1, 2006, plaintiff was placed on medical leave for neck and back injuries she suffered in the on-duty car accident that occurred on May 30, 2004. Plaintiff did not file a notice of claim for either Suit I or Suit II. III. DISCUSSION A. Summary Judgment Standard Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). W hen the moving party has met their burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. at 1356. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S. Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the non-movant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S. Ct. at 2510; Matsushita Elec. Indus. Co., 475

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U.S. at 587, 106 S. Ct. at 1356. "[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996) (internal citation omitted). Additionally, affidavits or portions of affidavits that are not based on personal knowledge will not be entitled to any weight when considering a motion for summary judgment. Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999). B. Statement of Material Facts Both plaintiff and defendants assert that one another violated Local Rule 7.1 (a)(3) ("LR 7.1"). Plaintiff asserts that defendants' statements of material facts should be struck because the statement in Suit I is "onerous" and the statement in Suit II is "unduly lengthy" and "engages in extended discussion of nonmaterial facts" that violates the "spirit" of LR 7.1. See Bosman Affirmation ¶ 13, 5:03-CV-1329, Dkt. No. 117; Pl.'s Resp. to Statement of Material Facts, 1-2, 5:06-CV-949, Dkt. No. 45. Plaintiff seeks to strike defendants' statements of material facts for both suits. Defendants argue that in both of her replies, plaintiff failed to admit or deny the facts in many responses and also did not set forth specific citations to the record. See Defs.' Reply Mem. in Supp. of Summ. J., 1-3, 5:03-CV-1329, Dkt. No. 128-11; Defs.' Reply Mem. in Supp. of Summ. J., 1-3, 5:06-CV-949, Dkt. No. 48-9; Def. Douglas's Reply Mem. in Supp. of Summ. J., 1-3, 5:06-CV-949, Dkt. No. 46. All defendants seek to have those responses deemed admissions. The Local Rules are not "empty formalities". Meaney v. CHS Acquisition Corp., 103 F. Supp. 2d 104, 108 (N.D.N.Y. 2000). The rules "notify the parties of the factual support for their opponent's arguments" and "inform the court of the evidence and arguments in an organized way." Id. Although rules are not applied so strictly as to "undermine the interests - 16 -

of justice . . . there is a point when forbearance of a party's noncompliance with the Rules unfairly prejudices its adversaries." Id. at 109 (internal citation omitted). With regard to plaintiff's request to strike defendants' statements of material facts, LR 7.1 does not impose a length restriction. Accordingly, defendants' statements of material facts do not violate LR 7.1. Even more importantly, given plaintiff's numerous causes of action, the length of defendants' statements of facts are not unreasonable. Plaintiff's request to strike will therefore be denied. With regard to defendants' first argument, LR 7.1 states that a non-movant must respond "by admitting and/or denying each of the movant's assertions." Here, in response to a number of factual assertions, plaintiff disputes that the facts are relevant. See Pl.'s Resp. to Statement of Material Facts, ¶¶ 94-96, 5:03-CV-1329, Dkt. No. 125; Pl.'s Resp. to Statement of Material Facts, ¶¶ 2, 6, 11, 28, 80, 87, 88, 91, 100-104, 110, 111, 119, 120, 123, 5:06-CV-949, Dkt. No. 45; Pl.'s Resp. to Def. Douglas's Statement of Material Facts, ¶¶ 7-11, 15, 26-28, 5:06-CV-949, Dkt. No. 45. Plaintiff also disputes the admissibility of a number of statements on the ground that those statements are hearsay. See Pl.'s Resp. to Statement of Material Facts, ¶¶ 30, 33, 34, 41, 43, 49-52, 55, 56, 59, 60, 65, 68, 69, 71, 72, 75-81, 88, 89, 5:03-CV-1329, Dkt. No. 125; Pl.'s Resp. to Statement of Material Facts, ¶¶ 41, 43, 70, 98, 124, 125, 127, 5:06-CV-949, Dkt. No. 45; Pl.'s Resp. to Def. Douglas's Statement of Material Facts, ¶ 22, Dkt. No. 45. The non-moving party may object to the admissibility of statements. See Major League Baseball Props, Inc. v. Salvino, Inc., 542 F.3d 290, 312-15 (2d Cir. 2008) (applying S.D.N.Y. Local Rule 56.1).4 However, if the facts are admissible and

4

The standard for a response to a statement of material facts under Southern
( c o n t in u e d . . . )

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supported by the record, an objection is not sufficient to deny the fact. Id. at 314 ("An objection to the admissibility of a document is not the equivalent of a contention that the document's contents are untrue."). Therefore, where plaintiff objects only to admissibility and provides no indication that the fact is untrue, that fact will be deemed admitted by plaintiff if it is admissible under the Federal Rules of Evidence. As for defendants' second argument, LR 7.1 requires that "[e]ach denial shall set forth a specific citation to the record where the factual issue arises." LR 7.1. In a motion for summary judgment, if a non-movant's statement fails to include citations to the record, a District Court could deem those facts to be admitted. See Meaney, 103 F. Supp. 2d at 108. Second Circuit cases addressing the insufficiency of a non-movant's responses primarily address situations where the non-movant failed to submit any response or did not provide any cites to the record in the responses. See, e.g., N.Y. State Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005); Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998). Here, plaintiff does not completely fail to submit responses and, for the most part, cites the record. However, in a number of plaintiff's responses to individual paragraphs, there are no citations to the record. See, e.g, Pl.'s Resp. to Statement of Material Facts, ¶¶ 9,12, 53, 5:03-CV-1329, Dkt. No. 125. Additionally, in other responses, plaintiff fails to

4

( . . . c o n t in u e d )

District of New York Local Rule 56.1 is analogous to N.D.N.Y. LR 7.1. See S.D.N.Y. Local Rule 56.1(c) ("Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.") (emphasis omitted). - 18 -

provide page numbers or exhibits where factual information may be found. See, e.g, Pl.'s Resp. to Statement of Material Facts, ¶¶ 17, 23, 29, 30, 40, 5:03-CV-1329, Dkt. No. 125; Pl.'s Resp. to Statement of Material Facts, ¶¶ 63, 65, 95, 96, 105, 5:06-CV-949, Dkt. No. 45. Although these responses are not as deficient as not responding at all, they do not meet the requirements of LR 7.1. Nevertheless, a "district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001). Even if a non-movant fails to follow the local rules, summary judgment may not be granted if the movant has not met its burden under the Federal Rules of Civil Procedure. Id. Therefore, in the interest of justice, where the facts that plaintiff is attempting to reference can be ascertained by reviewing the record, the lack of a citation or an insufficient citation will not be taken construed as an admission. However, where plaintiff attempts to dispute material facts through conclusory assertions without factual support in the record, those assertions will not be sufficient for a motion for summary judgment. C. City of Syracuse Police Department (Suits I and II) A police department "does not have its own legal identity;" rather, it is an administrative arm of a city. Baker v. Willett, 42 F. Supp. 2d 192, 198 (N.D.N.Y. 1999) (internal citation omitted). Here, plaintiff brought claims against both the City of Syracuse and the SPD. Because these are not separate legal entities, all claims against defendant SPD will be granted summary judgment to the extent that both the SPD and City of Syracuse are named as defendants in the same causes of action.

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D. Title VII (Suit II) All of plaintiff's Title VII claims of discrimination, retaliation, and hostile work environment addressed here arise out of Suit II. Plaintiff asserted Title VII claims for discrimination and retaliation in Suit I. As previously noted, those claims were dismissed and will not be discussed here. See Lee, No. 5:03-CV-1329, slip op. at 6-9, Dkt. No. 33. Defendants' alleged discriminatory conduct falling within the relevant time period for Suit II includes the assignment of overtime, disciplinary decisions, and the prohibition on the use of work time to attend medical appointments for work-related injuries. Plaintiff's retaliation claims for Suit II arise from defendants' investigations and disciplinary decisions. Defendants' conduct relevant to plaintiff's hostile work environment claim include: defendant Douglas's verbal comments and memorandum, the comments made by defendant Kerwin at a retirement party, writing in the bathroom, the presence of pornography at work, and the general use of derogatory names for women by members of the police force. 1. Individual Liability Under Title VII, "individuals are not subject to liability." Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (internal cites omitted). Because defendants are not subject to individual liability under Title VII, defendants' motion for summary judgment will be granted for all individual defendants sued in their individual capacity under Title VII. 2. Gender Discrimination (First Cause of Action in Suit II) Title VII discrimination claims are analyzed based on the McDonnell Douglas burden-shifting test. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973). First, a plaintiff must establish a prima facie case of discrimination by

- 20 -

showing: "(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824). If a plaintiff establishes a prima facie case, then the defendant must demonstrate that it had a legitimate and non-discriminatory reason for its actions. McDonnell Douglas, 411 at 802, 93 S. Ct. at 1824. If the defendant meets its burden, the plaintiff must then show that the defendant's explanation is merely pretext for unlawful discrimination. Id. at 804, 93 S. Ct. at 1825. At this point, the plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action].'" Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir.1994)). For Title VII discrimination claims, instances of unlawful conduct are considered discrete acts. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 104-05, 122 S. Ct. 2061, 2068 (2002). Discrete acts that occurred more than 300 days prior to the EEOC complaint will not be considered. Id. For Suit II, plaintiff filed an EEOC complaint on March 20, 2006. Therefore, discrete acts prior to May 24, 2005 will not be considered. Here, plaintiff's claims for disparate treatment in the relevant time period relate to the assignment of overtime, disciplinary actions, and the prohibition against using work time to attend medical appointments for work-related injuries. Although defendants admit plaintiff is a member of a protected class, they do not concede any of the stages of the McDonnell Douglas burden-shifting analysis: First, defendants argue that plaintiff has not established a - 21 -

prima facie case of discrimination; second, they contend there were legitimate nondiscriminatory reasons for their actions; and third, they claim that plaintiff has not established that their actions were mere pretext. a. Overtime Assignment W ith regards to the assignment of overtime, plaintiff has not established her prima facie case because she has not shown an adverse employment action. An adverse employment action creates "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) (internal citation omitted). Here, although allocation of overtime could qualify as an adverse action because of the loss of an opportunity for a higher salary, plaintiff offers no evidence, including her own affidavit, that she personally was denied overtime assignments. In Suit II, plaintiff does not cite instances where she sought overtime work and that work was denied after May 24, 2005.5 Plaintiff has submitted the report of her expert, Dr. Charles N. Kroll, as evidence that disparate assignment of overtime for women may occur. See Ex. G to Bosman Affirmation, 5:06-CV-949, Dkt. No. 41-3. However, even if that report is admissible, it is not sufficient to establish a prima facie case unless plaintiff submits some evidence that she personally was denied overtime. Because plaintiff has not submitted evidence that she has been denied overtime in the relevant time period, she has not establish a prima facie case of discrimination and accordingly, defendants will be granted summary judgment.

Plaintiff does assert that she was denied the opportunity for overtime when she was on medical leave after the November 2000 altercation. That time period is not rele vant to her Title VII claim because it falls outside of the relevant 300 day time perio d.
5

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b. Use of Work-Time to Attend Appointments Plaintiff asserts that male officers at the SPD are allowed to go to medical appointments while on-duty and she has been discriminated against because she is no longer allowed to go to medical appointments while working. She also states that she was discriminated against because she could not use a SPD car to attend these appointments. A showing of disparate treatment can raise a sufficient inference of discrimination for a prima facie case. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). In this case, however, plaintiff has not submitted admissible evidence that others at the police department are allowed to go to medical appointments while working. To the contrary, defendants have presented evidence of a lack of disparate treatment. They have shown that the SPD has a policy regarding the scheduling of medical appointments outside of work hours and a policy that limits the use of department vehicles. See Cuelton Reply Aff. ¶¶ 4-8, 5:06-CV-949, Dkt. No. 48-5. Defendants have shown that sergeant John Douglas, a white, male officer, was not allowed to use work time to attend medical appointments, just like plaintiff. Id. at ¶ 4. Defendants have also submitted a decision from a grievance that both Sergeant Douglas and plaintiff brought regarding this policy where they were denied relief. See Ex. A to Cuelton Reply Aff., 5:06-CV-949, Dkt. No. 48-6. Because plaintiff has not shown disparate treatment, she has not establish her prima facie case. c. Discipline for Violation of SPD Rules Defendants raise a number of arguments for why plaintiff has not established a prima facie case of discriminatory discipline, including that her job performance was unsatisfactory, that the SPD's actions did not rise to the level of materially adverse

- 23 -

employment actions, that she was disciplined for violating SPD rules instead of because of her gender, and that she has failed to present evidence of disparate treatment. First, defendants argue that plaintiff has not performed her job in a satisfactory manner. They do not, however, establish that she was unqualified to be a police officer. In a situation where discipline may have been issued in a discriminatory manner, showing that plaintiff violated department rules is not sufficient, especially where such violations are commonly overlooked. Here, the core question is whether she was treated differently because of her gender for these violations. Therefore, although plaintiff's job performance is relevant to show defendant's legitimate, non-discriminatory reasons for their actions, this argument is not persuasive at the prima facie stage. Second, defendants correctly assert that not all of their actions qualify as adverse employment actions. In order to qualify as an adverse employment action for a Title VII discrimination claim, the action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya, 202 F.3d at 640 (internal quotation omitted). To qualify as adverse, "there must be a link between the discrimination and some tangible job benefits such as compensation, terms, conditions or privileges of employment." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (internal citation omitted). Here, having to submit inter-departmental memorandums in response to either orders from superior officers or instances of misconduct does not constitute an adverse employment action because it does not alter the conditions of plaintiff's employment. However, disciplining plaintiff for the incident at Nottingham High School and for spreading rumors affect tangible job benefits because plaintiff lost a number of furlough days. Therefore, the penalties imposed from the

- 24 -

discipline are sufficient to satisfy plaintiff's burden to show an adverse action during the prima facie stage. Defendants also argue that plaintiff has not shown that the discipline she received was because of her gender or that she was treated differently than similarly situated male colleagues. These arguments are equally unavailing. First, plaintiff has only a minimal burden when establishing a prima facie case of gender discrimination. Mandell, 316 F.3d at 378 (internal citation omitted). Second, plaintiff has shown disparate treatment because defendant Douglas was not disciplined for his conduct in relation to the Nottingham High School incident and that others in the department have not been subjected to discipline for "spreading rumors." In addition to this, plaintiff has submitted evidence that the severity of punishment can vary greatly. See Exs. B, D, E to Bosman Affirmation, 5:06-CV-949, Dkt. No. 41-2. This is sufficient to show an inference of discrimination for a prima facie case. Because plaintiff has established her prima facie case for the discipline she received, the burden shifts to defendants. At the second stage of the McDonnell Douglas burden-shifting analysis, the defendant must show a legitimate, non-discriminatory reason for an adverse employment action. Tex. Dep't of Cmty. Affairs, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094 (1981). Defendants present evidence that plaintiff violated SPD rules at Nottingham High School when she did not follow defendant Douglas and when she told others that defendant Kaufman abused his children. They have presented evidence of the department rule governing discipline that applies to all members of the police department, regardless of gender. See Ex. A to Galvin, 5:06-CV-949, Dkt. No. 35-25. Defendants have also submitted

- 25 -

evidence explaining why discipline may vary based on the number of past infractions and the severity of the conduct. See Galvin Reply Aff. ¶¶ 4-8, 5:06-CV-949, Dkt. No. 48-8. Because they have set forth legitimate, non-discriminatory reasons for imposing discipline and the level of discipline imposed, the burden shifts back to plaintiff. McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825. When the burden has shifted back to plaintiff, she must show by a preponderance of the evidence that defendants' proffered reasons are nothing more than pretext for unlawful discrimination. Id. at 802, 93 S. Ct. at 1824. Plaintiff's burden at the third stage of the McDonnell Douglas analysis is substantially higher than the burden at the first stage. Meiri v. Dacon, 759 F.2d 989, 996-98 (2d Cir. 1985). Pretext can be established "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Tex. Dep't of Cmty. Affairs, 450 U.S. at 256, 101 S. Ct. at 1095. Plaintiff has not presented evidence to establish pretext indirectly. In particular, defendants' explanation for the discipline is not "unworthy of credence" because plaintiff violated SPD rules before receiving discipline. Therefore, in order to survive summary judgment, plaintiff must show that discriminatory reasons more likely motivated the employer than the proffered reasons. However, by her own admissions, defendants were motivated by retaliation. For example, she states in her affidavit that "[e]ach time I have complained about a discriminatory or retaliatory act, the Department initiates an investigation into my conduct and finds a way to accuse me of wrongdoing." Pl.'s Aff. in Opp'n to Summ. J., ¶ 46, 5:06CV-949, Dkt. No. 39. Additionally, in her deposition taken on December 20, 2006, plaintiff stated that "my lawsuit wasn't sexual harassment . . . and the city was just looking for - 26 -

reasons to discipline me . . . to retaliate or get back at me . . . . " Pl.'s Dep. 211:22-25 (Dec. 20, 2006), 5:06-CV-949, Dkt. No. 41-8. Although supportive of her claim for retaliation discussed infra, these statements do not show that defendants were more likely motivated by plaintiff's gender for purposes of her discrimination claim. Admittedly, there may be more than one motive for any adverse action, but plaintiff still must show that the adverse action was more likely the result of gender discrimination. The limited admissible evidence plaintiff has submitted is insufficient to satisfy her burden, particularly as she all but concedes that defendants were motivated by retaliation instead of gender discrimination. As plaintiff has not established pretext, her Title VII claims for gender discrimination in discipline will not survive summary judgment and this cause of action will be dismissed. 3. Retaliation (Third Cause of Action in Suit II) For a Title VII retaliation claim, a plaintiff must show (1) that she was engaged in a protected activity; (2) that the employer was aware of that activity; (3) that plaintiff was thereafter subjected to an adverse employment decision; and (4) that there was a causal connection between plaintiff's protected activity and the adverse action. Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002) (internal quotation omitted). Plaintiff's retaliation claim under Title VII is subject to the same burden shifting analysis established in McDonnell Douglas. Amin v. Akzo Nobel Chemicals, Inc., 282 F. App'x 958, 961 (2d Cir. 2008). Retaliation claims are also subject to a 300-day time bar. See Morgan, 536 U.S. at 113, 117, 122 S. Ct. at 2072, 2074. Therefore, no alleged acts of retaliation from before May 24, 2005 will be addressed. Falling within the relevant time period is the investigation of plaintiff after the October 7, 2005 incident involving defendant Douglas, the investigation of

- 27 -

whether plaintiff had exposed herself at a SPD Christmas party, and the investigations of plaintiff and Sergeant Long. Defendants argue that plaintiff can not establish the third and fourth prongs of her prima facie case. First, they assert none of the alleged conduct by defendants, except for the discipline after the Nottingham High incident, qualifies as an adverse action because none of the conduct affected the terms and conditions of plaintiff's employment. This argument fails because it applies the wrong legal standard for "adverse action" for retaliation claims as recognized by the Supreme Court.6 Burlington Northern & Santa Fe Ry. Co. v. W hite, 548 U.S. 53, 66, 126 S. Ct. 2405, 2414 (2006). In Burlington Northern, the Supreme Court found that "adverse action" for a Title VII retaliation claim is a different and broader standard than for a Title VII discrimination claim. Id. The Court stated that an "adverse action" is any action "that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68, 126 S. Ct. at 2415 (internal quotations and citations omitted). An action will be considered material if it is "`likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers." Id. (internal quotation omitted). Here, plaintiff was investigated for exposing herself and for other violations of SPD rules. Being investigated by one's employer could deter a reasonable person from complaining about discrimination because investigations can

Defendants in their reply memorandum of law state the correct standard but only address one investigation outside of the relevant time period. See Defs. Reply M em . in Supp. of Summ. J., 9, 5:06-CV-949, Dkt. No. 48-9.
6

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be intrusive and intimidating. Because being investigated by one's employer could likely deter a victim from complaining about discrimination, this qualifies as an adverse action. Next, defendants point to plaintiff's filing of a second EEOC complaint and the time between the first EEOC complaint and any adverse actions as evidence that plaintiff was not dissuaded from complaining about discrimination. This argument fails because the adverse actions may have deterred a reasonable employee from reporting discrimination to her employer. Under Burlington Northern, it is not only conduct that will deter someone from reporting to the EEOC but also conduct that will deter a person from reporting discrimination to their employers. 548 U.S. at 66, 126 S. Ct. at 2415 (internal citation omitted) (Courts consider whether the action is "likely to deter victims of discrimination from complaining to the EEOC,' the courts, and their employers.") (emphasis added). Here, all investigations were done in close temporal proximity to complaints that plaintiff made to her employer. Because the adverse actions can be connected to complaints made to one's employer as well as the EEOC and plaintiff has shown that adverse actions were taken shortly after complaints to her employer, defendants' argument regarding the causal connection fails. By showing a causal connection, plaintiff has established all of the elements of her prima facie case and the burden shifts to defendants. As discussed, the investigations and discipline directed at plaintiff were the result of alleged violations of SPD rules. Such violations constitute legitimate, non-discriminatory reasons to conduct investigations and administer discipline. Accordingly, the burden shifts back to plaintiff to establish that such reasons were merely pretext for unlawful discrimination.

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To establish pretext, plaintiff must show that discriminatory reasons more likely motivated the employer than the proffered reasons. Here, since some form of investigation followed plaintiff's complaints to her employer or her attorney's request for documents and plaintiff has submitted admissible evidence that her supervisor was told to write her up every time she spoke about someone and that others similarly situated were not disciplined or investigated in the same manner, plaintiff has shown that it is more likely than not that these investigations occurred because of her complaints about discrimination. Because pretext can be established here, defendant's motion for summary judgment for the Title VII retaliation cause of action will be denied. 4. Hostile Work Environment (Second Cause of Action in Suit II) For a hostile work environment claim, a plaintiff must "elicit evidence from which a reasonable trier of fact could conclude (1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (internal citation omitted). For this type of claim, "the entire time period . . . may be considered" as long as one act occurred within the statutory period. Morgan, 536 U.S. at 117, 122 S. Ct. at 2061.7 Generally, "hostile work environment claims present mixed questions of law and fact that are especially well-suited for jury determination." Schiano v. Quality Payroll Sys,

Defendants argue that no conduct from 2000-2003 should be considered for pla in tiff's Title VII claims in Suit II because her Title VII claims were dismissed in Suit I. See Defs.' Reply Mem. Supp. Summ. J., 5-7, 5:06-CV-949, Dkt. No. 48-9. However, pla in tiff did not bring a Title VII hostile work environment claim in Suit I.
7

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Inc., 445 F.3d 597, 605 (2d Cir. 2007) (internal citation omitted). Specifically, when considering a hostile work environment claim, the fact that an employee was not present when derogatory comments were made does not make those comments irrelevant because the quantity, frequency, and severity of those comments help demonstrate a realistic view of work environment. Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997). Additionally, the Second Circuit has recognized that the mere presence of pornography in a workplace can alter the "status" of women and is relevant to assessing the objective hostility of the environment. Wolak v. Spucci, 217 F.3d 157, 160-61 (2d Cir. 2000). However, the Supreme Court has explained that the standard is not a "mathematically precise test," and "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" must be considered. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22-23, 114 S. Ct. 367, 371 (1993). Specifically, isolated incidents are generally not sufficient unless the conduct is particularly severe. Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2001). When addressing pervasiveness, the continuity of the conduct is considered. Id. If a plaintiff produces evidence of sufficiently severe conduct that created a hostile work environment, the plaintiff must also establish that "a specific basis exists for imputing the conduct that created the hostile environment to the employer." Mack, 326 F.3d at 122 (internal citation omitted). The conduct relevant to plaintiff's Title VII hostile work environment claim presented in Suit II includes: defendant Douglas's verbal comments and memorandum after the Nottingham incident, the comments made by defendant Kerwin at the retirement party, the

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writing in the bathroom, the presence of pornography at work, and the general use of derogatory names against women by members of the police force. Defendants argue that this conduct is not sufficient to establish a hostile work environment claim because the incidents were sporadic and not pervasive, any offensive comments were not made directly to plaintiff but conveyed to her third-hand, plaintiff herself made derogatory comments, plaintiff neither witnessed pornography first-hand nor complained that pornography was on display, and supervisors were generally not involved in the conduct. The incidents involving defendant Douglas and defendant Kerwin appear to be isolated incidents. As isolated incidents, they are not pervasive and must be considered in light of their severity. See Demoret, 451 F.3d at 149 (citing Patterson, 375 F.3d at 227). First, defendant Kerwin's comments were not made directly to plaintiff and were made outside of work. Although it is still relevant to a claim of a hostile work environment, the context does affect the severity. Here, defendant Kerwin's off-duty comment, although unprofessional and later repeated to plaintiff, does not appear to have altered plaintiff's work environment. As for defendant Douglas, the alleged derogatory comments and the memorandum was much more egregious. Nevertheless, defendant Douglas is not plaintiff's supervisor, he was investigated for the comments, and he was penalized five furlough days for the memorandum. Therefore, even if this conduct rose to the level of severity required for a hostile work environment claim, plaintiff has not established that her employer either expressly or passively ratified such behavior, and therefore, this conduct can not be attributed to the SPD. Finally, regarding specific conduct relating to plaintiff, there are the - 32 -

derogatory comments written on the bathroom wall. Plaintiff has only submitted evidence of this happening once, so it can not be deemed pervasive and the severity must be considered. Although this writing was highly inappropriate in a work place, plaintiff has not shown any evidence that the comments altered her working conditions. Additionally, defendants have shown that the writing was promptly removed after they were notified of its content. Therefore, these comments do not give rise to a hostile work environment claim. Although all of these incidents alone are not sufficiently severe to establish a hostile work environment claim, they must also be considered with other, ongoing conduct that could be deemed pervasive and cumulatively give rise to a hostile work environment claim. The ongoing conduct at issue here is the presence of pornography at work and the general assertion that plaintiff heard women called derogatory names. Although the presence of pornography is considered as part of a hostile work environment claim, plaintiff never personally observed pornography and did not report the presence of such material. Plaintiff admitted in her own deposition, ". . . I didn't see it so I had no complaint to make about it." Pl.'s Dep. 330:1-3 (Oct. 19, 2007), 5:06-CV-949, Dkt. No. 35-18. Since plaintiff admits that she had "no complaint" about it, the pornography did not severely alter her working conditions for the purposes of her hostile work environment claim. As for the use of derogatory terms to refer to women, plaintiff's assertion is quite vague. It does not include the names of anyone specifically who uses these terms, nor does it include the frequency that these terms were used. Again, plaintiff does not submit any evidence that she reported the use of these terms generally outside the complaints she made about defendants Kerwin and Douglas already discussed supra. Additionally, plaintiff herself does not deny that she sometimes used derogatory language when referring to other people at work. This weighs - 33 -

against her claim that the use of these terms altered her work environment because she was involved in similar conduct. Because of the vague nature of these claims, the fact that they were not reported to her supervisors, and plaintiff herself used similar derogatory terms, plaintiff has not shown pervasive conduct to support her claim of a hostile work environment. Even when all of the conduct is considered together, plaintiff has not shown that the conduct was either sufficiently severe or pervasive. Further, much of the conduct does not involve supervisors and therefore can not be attributed to her employer under Title VII. Because plaintiff has not shown that the complained of conduct was either sufficiently severe or pervasive to alter her working conditions and most of the conduct can not be attributed to plaintiff's supervisors, defendants' motion for summary judgment will be granted for plaintiff's Title VII hostile work environment cause of action. E. Americans with Disabilities Act (Fourth Cause of Action in Suit I) 1. Individual Liability There is no individual liability under the Americans with Disabilities Act ("ADA"). Briggs v. New York State Dept. of Transp., 233 F. Supp. 2d 367, 373 (N.D.N.Y. 2002). Because defendants are not subject to individual liability under the ADA, defendants' motion for summary judgment will be granted for all individual defendants. 2. Title I Claim The McDonnell Douglas burden-shifting analysis applies to ADA employment discrimination claims. See Reg'l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002). ADA Title I claims are time-barred if a plaintiff does not "file a charge with the EEOC within 300 days after `the alleged unlawful employment practice.'"

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Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 133 (2d Cir. 2003) (citing 42 U.S.C. § 2000e-5(e)(1) (2000)). Because plaintiff filed her first EEOC complaint on April 24, 2003, any discrete acts occurring before June 28, 2002 may serve as the basis of her cause of action. Plaintiff was on light duty until September 2002. At that time, plaintiff states that she was threatened with discipline or termination if she did not release her medical records from Dr. Lesswing. Plaintiff was then placed on administrative leave until July 2003. These acts fall within the relevant time period. The remainder of plaintiff's claims regarding conduct that could qualify as disability discrimination fall outside the time allowed to recover for discrete acts of discrimination, and accordingly are not cognizable. To establish her prima facie case, plaintiff must show that: "(1) [her] employer is subject to the ADA; (2) [she] was disabled within the meaning of the ADA; (3) [she] was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) [she] suffered adverse employment action because of [her] disability." Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001). Under this part of the statute, a "disability" includes, "(A) a physical or mental impairment that substantially limits one or more of the major life activities . . . ; (B) a record of such an impairment; or (C) being regarded as having such an impairment." Id. (quoting 42 U.S.C. § 12102(2)). Plaintiff contends she was disabled as defined under the ADA because defendants considered her mentally unstable despite her treating psychiatrist's determination that she could return to full-duty. According to plaintiff, defendants' erroneous belief that she remained emotionally disturbed led to her working light-duty only. She also contends that defendants' put her on administrative leave when she would not release a portion of her medical records. In response, defendants argue that plaintiff has not established that she is - 35 -

disabled within the meaning of the ADA because none of the evidence presented demonstrates they perceived her as incapable of working as a police officer. With regard to whether plaintiff was perceived as disabled, plaintiff has submitted evidence that at least one police officer