Gandarilla v. The City of New York et al

Filing 94

MEMORANDUM OPINION AND ORDER: re: 68 MOTION for Summary Judgment Notice of Motion. filed by The City of New York. For the foregoing reasons, the City's motion for summary judgment is granted with respect to Plaintiffs state-law assault and battery claim (Count IX), insofar as that claim is premised on events predating February 21, 2007, by more than 90 days, and with respect to the negligent hiring aspect of Count XI of the Complaint. The City's motion for summary judgment is denied in all other respects. This Memorandum Opinion and Order resolves docket entry no. 68. A Final Pretrial Conference is scheduled for Friday, October 12, 2012, at 2:00 p.m. in Courtroom 11C. (Signed by Judge Laura Taylor Swain on 8/15/2012) (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------x
SHARON GANDARILLA,
Plaintiff,
No. 07 Civ. 6909 (L TS)

-v-

ALBERTO SANCHEZ and
THE CITY OF NEW YORK,
Defendants.

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MEMORANDUM OPINION AND ORDER

Plaintiff Sharon Gandarilla ("Plaintiff'), a former police officer with the New
York City Police Department ("NYPD"), brings this action against her former superior officer
Alberto Sanchez ("Sanchez") and the City of New York ("the City"), asserting claims arising
from Sanchez's alleged sexual harassment and physical abuse of Plaintiff. Specifically, Plaintiff
brings: (1) hostile work environment claims against the City pursuant to Title VII (42 U.S.c. §
2000 et seq.), the New York State Human Rights Law (N.Y. Exec. Law § 296

seq.)

("NYSHRL"), and the New York City Human Rights Law (New York City Administrative Code
§ 8-107) ("NYCHRL"); (2) retaliation claims against the City pursuant to Title VII, the

NYSHRL, and the NYCHRL; (3) a state law claim of negligent hiring, retention, and
supervision against the City; (4) state law assault and battery claims against Sanchez, as well as
against the City based on the doctrine of respondeat superior; (5) claims against Sanchez,
pursuant to the NYSHRL and NYCHRL, for aiding and abetting the creation of a hostile work
environment; (6) a state law claim against Sanchez for false imprisonment; and (7) state law
claims against Sanchez for intentional and negligent infliction of emotional distress. The City
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has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
For the following reasons, the City's motion is granted in part and denied in part.

BACKGROUND

The following facts are either uncontested or taken in the light most favorable to
Plaintiff. Sanchez was hired by the NYPD on January 13, 1992. (Plaintiff's Exh. X, at 8.)
Plaintiff joined the NYPD on June 30, 1998. (City's Exh. A, at 55-56.) In February 2004,
Plaintiff and Sanchez first met, while they were assigned to the 23th Precinct. (Plaintiffs Exh.
C, at 40-42.) Sanchez held the rank oflieutenant at that time. CId.) Sanchez began pressuring
Plaintiff to begin a sexual relationship, repeatedly calling Plaintiff while on and off duty. (Id.)
Plaintiff and Sanchez begin a consensual sexual relationship in August 2004. (Id. at 42.)
Plaintiff began that relationship solely due to the pressure Sanchez placed upon her. (Id. at 43.)

In September 2004, Sanchez was transferred to a different precinct. (City'S Exh. A, at 245-46.)
Plaintiff applied for a transfer to the Police Academy Cadet Corps in December 2004. CId. at
249.)
On December 3, 2004, Police Officer Yvette Camarena filed a complaint with the
NYPD Office of Equal Employment Opportunity, alleging sexual harassment by Sanchez.
(Plaintiff's Exh. G, at ~~ 51-53.) Camarena's complaint alleges facts similar to those alleged in
the instant case, notably: that Sanchez repeatedly made unwanted sexual advances; used rank to
ensure that Camarena worked the same shifts and in close proximity to Sanchez; and used rank
to retaliate against Camarena for refusing to acquiesce to Sanchez's sexual overtures. (Td.)
In January 2005, Sanchez became the Commanding Ot1ker of the Police
Academy Cadet Corps. (City's Exh. A, at 249.) Plaintiff states that she had no knowledge of
GA]';J),\RILLc\.MSJ. WI'\)

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Sanchez's impending transfer when she applied for her own transfer. (Plaintiffs Exh. C, at 37­
39.)
On March 17,2005, Officer Camarena filed an EEOC complaint against Sanchez.
(Plaintiff s Exh. G at ~~ 60-61.) On August 18, 2005, Camarena filed an amended EEOC
complaint. (Id.) On November 17,2005, the EEOC sent Officer Camarena and the NYPD a
Notice of Right to Sue. (Id. at 38.) Camarena filed suit in federal court against the City and
Sanchez on February 17,2006. (Id. at 1.)
In May 2006, Plaintiff traveled with Sanchez to Florida. (City's Exh. A, at 44.)
During this trip, Sanchez physically struck Plaintiff. (Plaintiffs Exh. C, at 397-99, 500.) Upon
their return, Plaintiff indicated that she wished to end their relationship. (Id.) In Ju*e 2006,
Sanchez struck Plaintiff again. (Id. at 140.) In that same month, Plaintiff asked a f~llow officer,
Police Officer Galindo, to take transfer paperwork to headquarters on Plaintiffs behalf.
(Plaintiff s Exh. I, at 101-04.) Before Officer Galindo left the Cadet Corps for headquarters,
Sanchez stopped Officer Galindo and destroyed Plaintiffs transfer paperwork. (Id.) Plaintiff
!

has proffered a psychological evaluation that posits a number of reasons why she acquiesced in
the continuation of her relationship with Sanchez notwithstanding violence and other negative
factors.

Plaintiffs Exh. CC.)
I

In August 2006, Sanchez and Plaintiff met at a restaurant in the Bro

IX.

(Plaintiffs Exh. C, at 143-45.) During the course of that meeting, Plaintiff attempt d to leave, at
which point Sanchez began a physical altercation which culminated in Sanchez hea -butting
Plaintiff and giving her a bloody lip. (Id.) A third party reported Sanchez's violen e to the
police. (Id.) Four NYPD officers responded. (Id.) Sanchez displayed his Captain adge to the
officers, stated that he was arguing with his wife, and the officers left. (Id.) Durin this period,
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Sanchez would permit Plaintiff to leave work early, but would sign Plaintiff out at

later time,

resulting in Plaintiff receiving income for hours that she did not actually work. (Id. at 25.)
Sanchez told Plaintiff that this was intended as compensation for Plaintiff's abuse a his hands.
(rd. at 26.)

On September 1, 2006, Sanchez, Plaintiff, and a number of other offi ers in their
unit went to a restaurant after work to celebrate a coworker's retirement. (Plaintiff Exh. E, at
15.) Officer Galindo took photos of the group with a camera. (Plaintiffs Exh. I, at 6.)
Sanchez, jealous of Plaintiffs interaction with another male officer, grabbed Plainti f, took her
outside, and beat her in a car near the campus of New York University. (Plaintiffs' xh. E, at
15-16.) A New York University security guard witnessed this incident and contactd the NYPD.
(Id. at 16.) Other third parties also called 911; one such call transcript states that S . chez is
"beating the crap" out of Plaintiff, that "he's really going at her," and that "the man Sanchez)
I

told the woman that she was 'going to die. '" (Plaintiff s Exh. u.) Two 911 callers dentified the
license plate of the car Sanchez and Plaintiff were in. (Id.) At some point after this incident but
before his arrest, Sanchez ordered Officer Galindo to dispose of the camera with w ich Galindo
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had taken photos of Sanchez and Plaintiff together that day. (Plaintiffs Exh. I, at 2 -29.)
i

Galindo complied. (Id.) Sanchez was eventually arrested in December 2006 and co victed of
assault on the basis of this incident. (Plaintiff s Exh. F.)
On October 5, 2006, Sanchez became upset and jealous upon 1eamin that
Plaintiff was assigned to go on a detail with another male officer. (Plaintiffs Exh.

,at 35.)

Upon Plaintiffs return, Sanchez accused Plaintiff of sleeping with the other officer, grabbed her
by the hair, and led her down the hall and through the men's locker room into astor ge room,
where he assaulted her. (Id.)
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On multiple occasions prior to November 2006, Sanchez forced Plai tiff to
perform sexual favors while on duty at the Academy. (Id. at 258-59.) On one occa ion between
October 6 and November 13, Sanchez placed Plaintiff on duty as his driver. (Id. at .6-37.) After
returning from a trip, Sanchez told Plaintiff he wanted to have sex in his office. (Id) Plaintiff
refused. (Id.) Sanchez retaliated by ordering Plaintiff to wear a uniform (which wa not
generally required of Cadet Corps officers), and by ordering a Sergeant to deny Pia' tiffs
requests for leaves of absences. (Id.) On December 1,2006, Sanchez beat Plaintif again, an
encounter which left bruising still visible two days later, on December 3, 2006, whClj1 Plaintiff
I

Ii

sought medical treatment at Bellevue Hospital. (Id. at 114-118; Plaintiff's Exh. AAf Plaintiff
reported this beating to Internal Affairs, which led to Sanchez's arrest. (Plaintiff's tXh. E.)
I

In February 2007, Lieutenant Sala, Plaintiffs superior officer, changFd Plaintiff's
II

status from limited duty to restricted duty, without following the proper procedure If the NYPD
District Sergeant for approving such a change. (Plaintiffs Exh. C, 414-19.) Restri ted duty
officers cannot earn overtime. (Id.)
In December 2007, the NYPD issued disciplinary charges against PI
alleging theft of time, based on Sanchez's signing out of Plaintiff.
from the NYPD prior to the adjudication of those charges, on February 25,2008. ( .)
Sanchez was convicted of criminal assault on August 20, 2007, on tl

basis of the

September 1,2006 incident. (Plaintiffs Exh. F.) Nearly three years later, on May. 7,2010, the
disciplinary charges brought against Sanchez by the NYPD were adjudicated. (Plai
Exh. X.) On November 30,2010, Administrative Law Judge Robert W. Vinal foun
guilty of three of the five charges and specifications brought by the NYPD, and rec .mmended
dismissal. (Id.) On February 1,2011, NYPD Police Commissioner Raymond W.
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Vinal's recommendation of dismissal, and permitted Sanchez to retire with benefits.; (Plaintiffs
Exh. Y.)
DISCUSSION

Summary judgment is to be granted in favor of a moving party if "th~ movant
I

shows that there is no genuine dispute as to any material fact and the movant is entit1ed to
judgment as a matter oflaw." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty LObby, Inc.,
477 U.S. 242, 256 (1986) (the moving party bears the burden of establishing that there is no
genuine issue of material fact). A fact is considered material "it might affect the

ou~ome

of the

suit under the governing law," and an issue of fact is a genuine one where "the evid~nce is such
that a reasonable jury could return a verdict for the nonmoving party." Rojas v. Roman Catholic
Diocese of Rochester, 660 F.3d 98, 104 (2d Cif. 2011) (quoting Anderson, 477 U.S. at 248). The
Second Circuit has explained, however, that the nonmoving party "must do more th ..n simply
show that there is some metaphysical doubt as to the material facts" and "may not rely on
conclusory allegations or unsubstantiated speculation." DeFabio v. East Hampton Union Free
School Dist., 623 F.3d 71, 81 (2d Cir. 2010) (quoting Jeffreys v. City ofN.Y., 426 F.3d 549, 554
(2d Cir. 2005)). Rather, the nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial. Ouch v. Jakubek, 588 F.3d 757, 764 n.2 (2d Cir. 2009); see
Fed. R. Civ. P. 56(e)(2). The trial court's task at the summary judgment motion stage of the
litigation is limited to discerning whether there are any genuine issues of material fact to be
tried, and does not extend to deciding any such issues. Gallo v. Pmdential Residential Services,
Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
The City seeks summary judgment dismissing a number of aspects of Plaintiff s
claims, some on timeliness grounds and some on the merits. With respect to timelirtess, the City
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argues: (1) that Plaintiff s Title VII claims are untimely to the extent they are premised on events
that occurred more than 300 days before Plaintiff filed her EEOC charge; (2) that Plaintiffs state
and local antidiscrimination law claims are barred to the extent they are premised on events that
occurred more than three years before this action was filed; and (3) that Plaintiffs state law
assault and battery claim relating to the September 2006 beating must be dismissed because
Plaintiff failed to file a timely notice of claim regarding that incident.
The City also seeks dismissal of Plaintiffs Title VII and state hostile! work
,

environment claims on the merits, arguing that it is entitled to judgment as a matter
the so-called Faragher/Ellerth doctrine. As to Plaintiffs retaliation claim, the City

~f law under
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I

~sserts

that it

is entitled to judgment in its favor because Plaintiff has not proffered evidence suffibent to make
!

out a prima facie case. The City also seeks dismissal of Plaintiff s negligent hiring ~nd
1

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supervision claims, arguing that it had no notice of Sanchez's propensity for the c01duct that
I

caused Plaintiffs alleged injuries.

Timeliness of Claims
i

In its moving papers, the City asserts that certain of Plantiff s causes lof action are
time-barred, arguing: (1) that Title VII's timely filing provisions bar Plaintiff from

~ecOVering

under Title VII for any violations that occurred before June 2, 2006; (2) that the thr4e-year
statute of limitations for claims brought pursuant to the NYSHRL and NYCHRL ba s Plaintiff
from recovering under those statutes for any violations that occurred before August 1, 2004; and
(3) that the Notice of Claim requirements of New York General Municipal Law § 5 -e bar
Plaintiff from recovering against the City under state law for any assault and batte
occurred before November 23,2006.
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that

Title VII Claim

In New York, Title VII claims are time-barred if a plaintiff does not file a charge
with the appropriate administrative agency within 300 days of the occurrence of the lalleged
discriminatory practice. 42 U.S.c. § 2000e-5( e)( 1). The City argues that, because tlaintiff did
not file an EEOC complaint with the city until March 28,2007, Plaintiffs Title VII ~laims based
on events that occurred prior to June 2, 2006 are time-barred. Plaintiff correctly

ass~rts,

however, that her hostile work environment claim based on such events is not time-l1>arred. 1
A hostile work environment "is composed of a series of separate actsithat
I
I

collectively constitute one 'unlawful employment practice. '" See Nat'l R.R. Passenfer Corp. v.
Morgan, 536 U.S. 101, 117 (2002). Thus Plaintiffs hostile work environment claini is timely,
so long as Plaintiff filed suit within "300 days of any act that is part of the hostile

w~rk
!
i

environment," even if some of the acts making up the hostile work environment occljIrred more
I
,

I

than 300 days prior to filing. Id. at 117-18. ("It does not matter ... that some of the [component
acts of the hostile work environment fall outside the statutory time period. provide1 that an act
contributing to the claim occurs within the filing period, the entire time period ofthd hostile
environment may be considered by a court for the purposes of determining

liability"~.

contrast to hostile work environment claims, claims alleging discrimination based

In

01 "[d]iscrete

acts such as termination, failure to promote, denial of transfer, or refusal to hire ... 4onstitute[] a

I

separate actionable unlawful employment practice. [A plaintiffJ can only file a charfe to cover
I

discrete acts that occurred within the appropriate time period." Id. at 114.

As Plaintiffs moving papers in opposition to the instant motion only advanc~ a hostile
work environment theory, the Court considers Plaintiff to have abandoned any other
theory of recovery under Title VII, the NYSHRL and the NYCHRL.
i
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In order to determine whether Plaintiffs Title VII claims based on events prior to
June 2, 2006, are barred as untimely, the Court must first examine whether Plaintiff has alleged
facts and adduced evidence sufficient to support a prima facie hostile work environment claim,
or if, instead, Plaintiff has merely alleged numerous discrete acts of discrimination. When
deciding whether conduct constitutes an actionable hostile work environment, a court must look
to "all the circumstances, including 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." Td. at 116 (internal quotations
omitted). The Supreme Court has held that a plaintiff stated a viable Title VII hostilb work
I

environment claim predicated on sexual harassment when the plaintiffs superior "n1ade repeated
I

i

demands upon [plaintiff! for sexual favors ... both during and after business hours .j.. and even
I

forcibly raped her on several occasions." ~~~=~=='-'!...!""-=-'-'--'-'==, 477 ujS. 57, 60
i

(1986). The Supreme Court later clarified that the conduct in Meritor "merely present[ ed] an
I
I

especially egregious example[] of harassment" which "do[es] not mark the boundar~ of what is
i

actionable." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). The Second Circu~t has stated
I

that "[ r ]equiring an employee to engage in unwanted sex acts is one of the most peniicious and
I

oppressive forms of sexual harassment that can occur in the workplace." Jin v. Met~o. Life Ins.
I

310 F .3d 84, 94 (2d Cir. 2002). Thus relatively few incidents of physical sexuaJ harassment
by a supervisor are required to establish a legally actionable hostile work environme~t. See
I

Redd v. New York Div. of Parole, 678 F.3d 166, 179 (2d Cir. 2012) (evidence that shpervisor
touched plaintiff s breasts on three occasions sufficient to create triable issue of fact as to
existence of hostile work environment).

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In the instant case, Plaintiff has proffered evidence indicating that Sanchez: (1)
demanded sexual favors from Plaintiff while on duty, (Plaintiffs Exh. C at 238); (2) used
supervisory authority to punish Plaintiff if she did not comply with his demands, (id. at 36.); (3)
sexually assaulted Plaintiff (id. at 490); and (4) was frequently physically violent towards
Plaintiff, inside and outside of the workplace. (Id. at 497-501.) Plaintiff felt humiliated as a
result of Sanchez's beatings of her while on duty. (Id. at 28.) Sanchez's violence was
occasionally severe enough to bruise Plaintiff. (Plaintiffs Exh. AA.)
These actions are sufficiently frequent, severe, physically threatening, and
humiliating to constitute a hostile work environment under Morgan's multi-factor analysis.
Because Plaintiflhas proffered evidence sufficient to create a genuine issue of material fact as to
whether Sanchez in fact committed the alleged actions, and because Plaintiffs EEOC complaint
was filed less than 300 days after the end of the alleged hostile work environment, the City'S
motion for summary judgment dismissing any Title VII claims based on Sanchez's actions prior
to June 2,2006 is denied.

The NYSHRL and NYCHRL
The statute of limitations for claims brought pursuant to the NYSHRL and
NYCHRL is three years. Murphy v. Amer. Home Prod. Corp., 58 N.Y.2d 293,307 (1983); N.Y.
C.P.L.R. § 214(2). The continuing violation doctrine of Morgan applies to claims brought under
the NYSHRL and NYCHRL. See Cruz v. Coach Stores, Inc., 202 F.3d 560,565 n.l (2d Cir.
2000) (citing Leopold v. Baccarat. Inc., 174 F.3d 261,264 n.l (2d Cir. 1999) (NYSHRL);
Landwehr v. Grey Adver. Inc .. 622 N.Y.2d 17, 18 (N.Y. App. Div. 1995) (NYCHRL»; see also
Fleming v. Verizon New York, Inc., 419 F. Supp. 2d 455,465 (S.D.N.Y. 2005). The substantive
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standard for a prima facie hostile work environment claim pursuant to the NYSHRL is identical
to that under Title VII, Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cif. 2006),
while the NYCHRL standard for such a claim is less demanding. Williams v. New York City
Hous. Auth., 61 A.D.3d 62, 66-67 (2009) ("[T]t is clear that interpretations of State or federal
provisions worded similarly to [NYCHRL] provisions may be used as aids in interpretation only
to the extent that the counterpart provisions are viewed as a floor below which the [NYCHRL]
cannot fall, rather than a ceiling above which the local law cannot rise.").
The City argues that, because Plaintiff filed suit on August 1, 2007, any of
Plaintiff s claims brought under the NYSHRL and NYCHRL which accrued prior to August 1,
2004, must be dismissed as barred by the applicable statute of limitations. For substantially the
reasons explained in connection with the timeliness of Plaintiff s Title VII claim, the Court
concludes that Plaintiffs pre-August 2004 claims based on incidents that are alleged to have
been part of the hostile work environment arising from sexual pressure from Sanchez are timely.
The City'S motion for summary judgment dismissing any NYSHRL and NYCHRL claims based
on Sanchez's actions prior to August 1,2004 is therefore denied.

New York General Municipal Law § 50-e
To recover in tort against a New York municipality, a plaintiff must serve a
Notice of Claim within 90 days of the accrual of the cause of action. N.Y. Gen. Municipal Law
§ 50-e. A notice of claim is a condition precedent to the commencement of a negligence action

against the city. Glamm v City of Amsterdam. 67 A.D.2d 1056, 1057 (N.Y. App. Div. 1979),
afrd, 49 N.Y.2d 714 (N.Y. 1980). Federal courts entertaining state-law claims against a state's

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It

municipalities are obligated to apply that state's notice-of-claim provision. Felder v. Casey, 487
U.S. 131, 151 (1988).
The City assel1s that the Notice of Claim filed by Plaintiff on February 21,2007,
is untimely as to Plaintiff s state law assault and battery claims which accrued prior to November
23,2006. The City contends that, as a result, Plaintiffs assault and battery claim based on the
September 1,2006, criminal assault must be dismissed as untimely.
This claim accrued when Sanchez assaulted Plaintiff on September I, 2006.
Plaintiffs Notice of Claim was filed 173 days later, on February 21, 2007. Plaintiffs assault
and battery cause of action based on events outside the 90-day window preceding February 21,
2007, is therefore barred by Municipal Law § 50-e, and the Court will grant the City'S motion
for summary judgment as to that claim. 2

The Faragher/Ellerth Defense
The City moves for summary judgment with regard to Plaintiffs Title VII and
NYSHRL hostile work environment claims, arguing that the City is entitled, as a matter of law,
to prevail based on the affim1ative defense set forth in the companion cases of Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton. 524 U.S.

(1998) (the

"Faragher/Ellerth defense").3 Because there is a genuine question of material fact as to whether
2

Plaintiff argues that § 50-e does not bar the claim to the extent it is brought under
General Municipal Law § 205-e. The argument is unavailing, first, because the cited
statute applies to death or injury claims arising from accidents, and second, because
section 205-e claims appear to be subject to the § 50-e claim notice requirement. See
N.Y. Gen. Mun. Law § 205-e(1); Huebner v. New York City Transit Authority, 226
A.D.2d 678 (N.Y. App. Div. 1996).
The Faragher/Ellerth defense is not applicable to hostile work environment claims
brought pursuant to the NYCHRL. Zakrzewska v. New School, 14 N.Y.3d 469, 479
(N.Y. 2010).

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the City meets the threshold requirements of the Faragher/Elle11h defense, summary judgment is
denied.
An employer will be held vicariously liable to an employee if a supervisor with
immediate (or successively higher) authority over the employee creates an actionable hostile
work environment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). A defending
employer may raise the Faragher/Ellerth defense to liability or damages only if no tangible
employment action was taken by the allegedly victimizing supervisor with respect to the
employee.

Once an employer has met this threshold, the employer must establish two

necessary elements by a preponderance of the evidence: (a) that the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid hann otherwise. Id.
"[A] tangible employment action constitutes a significant change in employment
status such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits." Id. at 761. The Second
Circuit has ruled that a supervisor "requiring an employee to engage in unwanted sex acts ... fits
squarely within the definition of 'tangible employment action' that the Supreme Court
announced in "-=== and Ellerth." Jin v. Metro. Life Ins. Co., 310 F.3d 84, 94 (2d Cir. 2002).
The Second Circuit also held that any tangible employment action by a supervisor based on an
employee's response to unwanted sexual advances, whether adverse or beneficial, precludes an
employer from raising a Faragher/Ellerth defense:
If a supervisor undertakes or recommends a tangible job action based on a
subordinate's response to unwelcome sexual demands, the employer is
liable and cannot raise the affinnative defense. The result is the same
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whether the employee rejects the demands and is subjected to an adverse
tangible employment action or submits to the demands and consequently
obtains a tangible job benefit.
Id. at 94-95.
Plaintiff maintains that her sexual relationship with Sanchez was unwanted, at
least from mid-2006, and has proffered evidence that Sanchez would order subordinates to
disapprove Plaintiff s requests for leaves of absence if Plaintiff refused to have sex with Sanchez
in his office. (Plaintiffs Exh. C, at 36.) Sanchez also destroyed documentation necessary for
Plaintiffs requested transfer out of Sanchez's unit. (Plaintiffs Exh. I, at 59-62.) Sanchez
permitted Plaintiff to leave work early, but would sign Plaintiff out at a later time, resulting in
Plaintiff receiving income for hours Plaintiff did not work. (Plaintiffs Exh. C, at 25.) Sanchez
told Plaintiff that this was intended as compensation for Plaintiff s abuse at his hands. (Id. at
26.) This evidence is sufficient to create a genuine question of material fact as to whether
Sanchez undertook tangible employment action based on Plaintiffs responses to unwanted
sexual advances. The City's motion for summary judgment on the basis of the Faragher/Ellerth
defense is therefore denied.

Retaliation
Retaliation claims under Title VII 4 are evaluated under a three-step burdenshifting analysis. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). First,
the plaintiff must establish a prima facie case of retaliation by showing that: (1) the plaintiff
engaged in protected participation or opposition under Title VII; (2) the employer was aware of
4

The analytic framework governing retaliation claims pursuant to the NYSHRL and the
NYCHRL is identical to that under Title VII. Spiegel v. Schulmann, 604 F.3d 72, 80 (2d
Cir. 2010). Thus, the Court's analysis applies to all three claims.

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this activity; (3) the employer took adverse action against the plaintiff; and (4) a causal
connection exists between the protected activity and the adverse action, i.e., that a retaliatory
motive played a part in the adverse employment action. rd. at 173; see also Kessler v.
Westchester County Dept. of Soc. Services, 461 F.3d 199,205-06 (2d Cir. 2006). To establish
an adverse action, a plaintiff must show material harm, as "petty slights or minor annoyances
that often take place at work and that all employees experience" do not constitute actionable
retaliation. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). This harm must
be sufficient to dissuade a reasonable employee in the plaintiff's position from making a charge
of discrimination. Kessler v. Westchester County Dept. of Soc. Services, 461 F.3d 199,209-10
(2d Cir. 2006).
If the plaintiff sustains this initial burden, "a presumption of retaliation arises."
Jute, 420 F.3d at 173. The defendant must then "articulate a legitimate, non-retaliatory reason
for the adverse employment action." Id. If defendant does so, "the presumption of retaliation
dissipates and the employee must show that retaliation was a substantial reason for the adverse
employment action." Id. A plaintiff can sustain this burden by proving that "a retaliatory
motive played a part in the adverse employment actions even ifit was not the sole cause[;] if the
employer was motivated by retaliatory animus, Title VII is violated even ifthere were
objectively valid grounds for the [adverse employment action]." Sumner v. U.S. Postal Serv.,
899 F.2d 203, 209 (2d Cir.1990).
The City argues it is entitled to summary judgment in its favor on Plaintiff's
retaliation claims because: (1) Plaintiff has not proffered evidence sufficient to establish that an
adverse employment action was taken against Plaintiff; and (2) in the alternative, the City has
articulated a legitimate non-retaliatory reason for the adverse action, and Plaintiff has failed to
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proffer evidence sufficient to support a finding that the adverse action was in fact motivated, at
least in part, by retaliatory animus.
The City's first argument is unsupported by the evidence before the Court
Plaintiff testified that her superior, Lieutenant Sala, placed her on restricted duty status without
following established procedures for doing so. (Plaintiff's Exh. C, 414-19.) Officers on
restricted status are precluded from working overtime. (Id.) Reclassification to a status that is
ineligible for compensation benefits in the form of overtime constitutes the necessary showing of
an adverse action. From this evidence, a rational fact-finder could permissibly infer that a
reasonable employee in Plaintiff's position could well have been dissuaded from making a
charge of discrimination if doing so would result in a loss of opportunity to earn overtime hours
and pay. The City's second argument is equally unavailing. The City asserts that Plaintiff's
status was only changed to limited duty, a position which, according to Plaintiff's testimony, was
eligible for overtime. (Id.) As discussed above, however, Plaintiff has proffered evidence that
her status was actually changed to restricted duty, under which officers are prohibited from
earning overtime. (Id.) Accordingly, there is an issue of material fact as to the nature of the
change in Plaintiff's status and, therefore, whether the City has even articulated a legitimate,
non-retaliatory reason for the alleged adverse employment action.

Negligent Hiring, Supervision, and Retention
Under New York law, "[i]n instances where an employer cannot be held
vicariously liable for its employee's torts, the employer can still be held liable under theories of
negligent hiring, negligent retention, and negligent supervision." Kenneth R. v. Roman Catholic
Diocese of Brooklyn. 229 A.D.2d 159,161 (N.Y. App. Div. 1997). "A claim for negligent
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supervision or retention arises when an employer places an employee in a position to cause
foreseeable hann, hann which the injured party most probably would have been spared had the
employer taken reasonable care in supervising or retaining the employee." Bouchard v. )Jew
York Archdiocese, 719 F. Supp. 2d 255, 261 (S.D.N.V. 2010) aff'd, 458 F. App'x 37 (2d Cir.
2012). Under New York law, a claim for negligent hiring, supervision or retention, "in addition
to the standard elements of negligence," requires "a plaintiff [to] show: (1) that the tortfeasor and
the defendant were in an employee-employer relationship; (2) that the employer 'knew or should
have known of the employee's propensity for the conduct which caused the injury' prior to the
injury's occurrence; and, (3) that the tort was committed on the employer's premises or with the
employer's chattels." Ehrens v. Lutheran Church, 385 F.3d 232,235 (2d Cir. 2004) (citing
===-==,229 A.D.2d at 161; D'Amico v. Christie, 71 N.Y.2d 76,87-88 (N.Y. 1987» (internal
quotations and citations omitted).5 The Second Circuit has held that a prima facie showing of
the notice element of a negligent retention and supervision claim requires evidence that the
employer knew that "[the employee] had [] engaged in, or been accused afengaging in, sexual
misconduct." ==-==::.,385 F.3d at 235 (emphasis added).
The City does not dispute in its moving papers that Sanchez was an employee of
the NYPD, or that at least some of Sanchez's harassment of PlaintitI occurred on NYPD
premises. The City argues, however, that Plaintiff has not established that the City had the
requisite notice of any propensity on Sanchez's part to commit the hanns alleged, and therefore
moves for summary judgment on Plaintiff's negligent hiring, retention, and supervision claim.

The City further cites Cardona v. Cruz, 271 A.D.2d 221, 222, (N.Y. App. Div. 2000), and
several other short Appellate Division decisions for the proposition that a negligent
retention or supervision action does not lie where an employee is not either 1) 3l:ting
within the scope of employment or 2) under the employer's control.
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Plaintiff has introduced no evidence showing that Sanchez had a history of
violence toward co-workers or sexual harassment prior to his hiring in 1992. Since Plaintiff has
fai led to produce evidence of a propensity of which the City could have known at the time of
Sanchez's hiring, the Court grants the City's motion for summary judgment with respect to the
negligent hiring cause of action. However, Plaintiff has proffered evidence indicating that the
City had actual notice that Sanchez "had been accused of engaging in[J sexual misconduct."
Ehrens, 385 F.3d at 235.
Prior to the events giving rise to the instant case, Police Officer Yvette Camarena,
one of Sanchez' subordinates, filed numerous complaints alleging facts similar to those alleged
in the instant case: that Sanchez repeatedly made unwanted sexual advances; used rank to ensure
Camarena worked the same shifts and in close proximity to Sanchez; and used rank to retaliate
against Camarena for refusing to acquiesce to Sanchez's sexual overtures. (PlaintiWs Exh. G, at
~1·151-53.)

On December 3,2004, Camarena filed a complaint with the NYPD Office of Equal

Employment Opportunity alleging, inter alia, sexual harassment by Sanchez. (Id. at ~ 50.)
Camarena filed an EEOC complaint on March 17,2005, and filed an amended EEOC complaint
on August 18,2005. (ld. at 'r~ 60-61.) On November 17,2005, the EEOC sent Camarena and
the NYPD a Notice of Right to Sue. (Id. at ~ 8.) On February 1 2006, Camarena filed suit in
federal court against, inter alia, the City, the NYPD, and Sanchez, alleging that Sanchez's
harassment violated state and federal law. (Id. at fl.) Camarena further alleged that Sanchez's
supervisor-subordinate relationship with her became notorious and was not properly investigated
or cabined. (ld. at ~~ 48, 55-56.) This evidence is sufficient to establish that the City knew that
Sanchez had been accused of engaging in sexual misconduct towards his subordinates and thus,

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to raise a genuine issue of fact as to whether the City should have perceived a propensity to
abuse subordinates as to which the City should have taken remedial or protective action.
The City further contends that it is entitled to summary judgment because
Plaintiff has not made a prima facie showing that the City's negligent supervision and/or
retention was the proximate cause of Plaintiff s harm. However, a genuine issue of material fact
exists as to causation and precludes summary judgment on this ground. The City has provided
no evidence that it investigated Officer Camarena's complaints against Sanchez, or took any
other action. Sanchez received no discipline, nor was Sanchez required to complete any
additional training or supervised more closely. (City'S Exh. D.) Given the considerable
similarities between Plaintiffs allegations and Officer Camarena's complaints, and the timing of
those complaints in relation to the harassment and abuse of which Plaintiff complains, the
question of whether the City's action or inaction with regard to Sanchez was the proximate cause
of Plaintiffs injuries cannot be resolved as a matter oflaw. Summary judgment will therefore
be denied as to the negligent retaliation and supervision claim.

CONCLUSION

For the foregoing reasons, the City'S motion for summary judgment is granted
with respect to Plaintiffs state-law assault and battery claim (Count IX), insofar as that claim is
premised on events predating February 21, 2007, by more than 90 days, and with respect to the
negligent hiring aspect of Count XI of the Complaint. The City's motion for summary judgment
is denied in all other respects.

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This Memorandum Opinion and Order resolves docket entry no. 68. A Final
Pretrial Conference is scheduled for Friday, October 12,2012, at 2:00 p.m. in Courtroom lIe.

SO ORDERED.

Dated: New York, New York
August 15, 2012

~ORS~AIN

United States District Judge

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