Crews v. The City of Ithaca

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

SARAH CREWS,

Plaintiff,

vs. 3:17-CV-213

(MAD/ML)

THE CITY OF ITHACA; JOHN R. BARBER,

Chief of Police; PETE TYLER, Chief of Police;

and DENNIS NAYOR,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

OFFICE OF EDWARD E. KOPKO EDWARD E. KOPKO, ESQ.

308 N. Tioga Street

2nd Floor

Ithaca, New York 14850

Attorneys for Plaintiff

ROEMER WALLENS GOLD & EARL T. REDDING, ESQ.

MINEAUX LLP

13 Columbia Circle

Albany, New York 12203

Attorneys for Defendants

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On February 23, 2017, Plaintiff commenced this action against Defendants the City of

Ithaca and John Barber alleging unlawful workplace discrimination under Title VII of the Civil

Rights Act of 1964 ("Title VII") and the New York State Human Rights Law ("NYSHRL"), and

constitutional violations under 42 U.S.C. § 1983. See Dkt. No. 1 at ¶¶ 91-144. On June 22, 2017,

Defendants filed a motion to dismiss the complaint. See Dkt. No. 15. Defendants' motion was

granted in part and denied in part, resulting in the dismissal of a number of Plaintiff's claims. See

Dkt. No. 22. On June 21, 2019, Plaintiff filed a supplemental complaint with additional factual

allegations. See Dkt. No. 54. On February 10, 2020, Plaintiff filed a second supplemental

complaint. See Dkt. No. 72. Finally, on March 2, 2020, Plaintiff filed a third supplemental

complaint. See Dkt. No. 78. The third supplemental complaint is the operative pleading. On

June 30, 2020, Defendants filed a motion for summary judgment as to all claims.1 See Dkt. No.

90. Plaintiff opposed the motion and filed a cross-motion for summary judgment.2 See Dkt. Nos.

102, 107. Currently before the Court are Defendants' motion for summary judgment and

Plaintiff's cross-motion for summary judgment. For the following reasons, Defendants' motion for

summary judgment is granted.

II. BACKGROUND

Plaintiff began her employment as a police officer with the Ithaca Police Department ("the

Department") in 2007. See Dkt. No. 90-1 at ¶ 80. Throughout her employment, Plaintiff has

identified herself as openly gay. See id. at ¶ 86. Plaintiff maintains a more masculine form of

dress than her female colleagues, opting to wear a tie and eight-point hat. See id. at ¶¶ 87-88.

Early in her employment with the Ithaca Police Department, Plaintiff was ridiculed for her manner

of dress by two fellow officers. See id. at ¶¶ 83-84. The officers created a fake ID that included

1 Plaintiff argues that Defendants' statement of material facts contains assertions of fact

that are not supported by specific citations to the record pursuant to Local Rule 7.1. Dkt. No. 102

at 12. However, all of the factual assertions relied upon by the Court in reaching this decision are

properly supported by a specific citation to the record.

2 Although Plaintiff filed a notice of a cross-motion for partial summary judgment, it is

unclear on what grounds – or even as to which claims – Plaintiff makes her motion. See Dkt. No.

107. Apart from vague assertions in her opposition memorandum, Plaintiff makes no arguments

as to why summary judgment should be granted in her favor. In fact, Plaintiff's arguments in

opposition to Defendants' motion are primarily that issues of fact remain, which – if true – would

necessarily preclude summary judgment from being entered in her favor. See Dkt. No. 102.

2

Plaintiff's picture with the name "McLovin" printed on the ID, a reference to the movie

"Superbad." See id. This issue was investigated and the officers responsible were disciplined.

See id. at ¶¶ 83-85.

Plaintiff's claims stem primarily from her repeated objections to the Department's policies

for searching, transporting, and supervising detainees in their custody. The policies require that

"'an officer of the same gender should conduct all searches,' subject to very limited exceptions

involving officer safety."3 See id. at ¶ 58. The policies further require the following:

[A] search incident to arrest should generally be conducted by an

officer of the same gender. If an officer of the same gender is not

present, notify the Shift Commander in order to make arrangements

to provide one. The prisoner will remain secured and under

constant supervision until an officer of the same gender can

complete the search.

[W]henever possible, officers of the same gender as the prisoner

will transport prisoners. Officers transporting prisoners of the

opposite gender will notify the 911 Center of their destination, and

starting and ending mileage. They will proceed without delay on

the most direct route, and will notify the 911 Center of any delays

encountered.

Id. at ¶¶ 59-60. Similarly, there is a requirement that all prisoners must be constantly monitored

unless they are secured in a holding cell. See id. at ¶ 62. With respect to searching, the policies

require that "searching a female prisoner shall be accomplished by an on-duty female officer, or

3 The Court notes that both New York State and Federal law require significant limitations

on cross-gender searches. See 9 N.Y.C.R.R. § 7502.1(d) ("Searching of a female prisoner shall be

accomplished by the regularly appointed police matron, or other qualified female person whose

services may be available on a part-time basis"); 9 N.Y.C.R.R. § 7504.1(e) ("Supervision of

female prisoners shall be accomplished by a matron, and a female prisoner shall not be placed in

or removed from a detention area unless the matron is present. The matron shall retain the key for

the detention area for females and no male person shall be permitted to enter an area where female

prisoners are detained unless accompanied by the matron."); 28 C.F.R. § 115.15(a) ("The facility

shall not conduct cross-gender strip searches or cross-gender visual body cavity searches

(meaning a search of the anal or genital opening) except in exigent circumstances or when

performed by medical practitioners.").

3

other qualified female person when possible." See id. at ¶ 63. "If there is not a qualified female

available the shift commander will be notified to make arrangements to provide one. The prisoner

will remain secured and under constant supervision until a female officer can complete the

search." See id. at ¶ 66.

Finally, the Department's regulations also require the following:

Supervision of female prisoners shall be accomplished by a female

jailer, and a female prisoner shall not be placed in or removed from

a detention area unless the female jailer is present. The female

jailer shall retain the key for the detention area for females and no

male person shall be permitted to enter an area where female

prisoners are detained unless accompanied by the female jailer.

Id. at ¶ 68.

Plaintiff alleges that she began to express her concern about these policies in 2011 after a

detainee under Plaintiff's supervision threatened to make a false allegation of sexual assault

against Plaintiff. See id. at ¶ 89. In May 2015, Plaintiff emailed a sergeant with the Department

stating that she is giving "formal notice of [her] objection to [her] functioning as a jailer to female

prisoners, as is required under [the Department's policies]." See id. at ¶ 112. Plaintiff claims that

the policies at issue protect male officers from allegations of improper contact with female

prisoners but do not provide the same protection to her as a homosexual female. See id. at ¶ 113.

In response to Plaintiff's complaints, her supervisors attempted to make a number of

modifications to protect Plaintiff. See id. at ¶¶ 118-124. Initially, female detainees were

temporarily housed in a different area while permanent alterations were made. See id. at ¶ 118.

The Department contacted the Tompkins County Corrections Department and the New York State

Department of Corrections and Community Supervision to determine how their policies address

the issues raised by Plaintiff. See id. Ultimately, cameras were installed in the female cell area to

4

ensure that officers were protected from false allegations and the bathroom procedures for female

detainees were changed.4 See id. at ¶¶ 131, 136. Notably, during this time, Plaintiff was given

the opportunity to present proposed modifications to the policy, but she declined to provide any

specific suggestions. See id. at ¶¶ 125-27. Following these modifications, Plaintiff continued to

object to the Department's search and jail policies. Plaintiff alleges that she experienced a series

of retaliatory actions in response to her objections.

Over the next several years, Plaintiff received a number of notices of discipline which

alleged that Plaintiff engaged in conduct that violated the Department's rules and regulations.

Plaintiff claims that these notices of discipline were part of a course of retaliation. The Court

describes each of these notices of discipline in great detail below. The alleged misconduct began

in 2015 and continued until Plaintiff was suspended, and ultimately issued a notice of termination,

in 2019. See id. at ¶¶ 147-72. In her complaint, Plaintiff also alleges that, in retaliation for her

objections, she was repeatedly assigned to a less favorable beat and was passed over for an in-

charge shift and a position as the Department's LGBTQ liaison.

III. DISCUSSION

A. Summary Judgment Standard

A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue

warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43

4 The record indicates that the changes to the bathroom procedures were as follows: "If a

female defendant needs to use the bathroom and no female officer is available, male officers may

allow the female defendant to use cell [number seven] while the officer waits at the threshold of

door C. There [are] adequate cameras in the booking area to protect ALL officers from

accusations of 'spying/peeping' while they utilize the bathroom." See Dkt. No. 90-35 at 47.

5

F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the

court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at

36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a

motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the

court is required to resolve all ambiguities and draw all reasonable inferences in favor of the

nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the

motion or fails to dispute the movant's statement of material facts, the court must be satisfied that

the citations to evidence in the record support the movant's assertions. See Giannullo v. City of

New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the

assertions in the motion for summary judgment "would derogate the truth-finding functions of the

judicial process by substituting convenience for facts").

B. Title VII and NYSHRL Claims

As an initial matter, the Court notes that the same standard is used when analyzing Title

VII and NYSHRL claims. See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (citations

omitted); Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (citation omitted).

Discrimination claims under Title VII are evaluated under the burden-shifting framework set forth

in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). It is the plaintiff's burden to

establish a prima facie case of discrimination. See Vega v. Hempstead Union Free Sch. Dist., 801

F.3d 72, 83 (2d Cir. 2015) (citation omitted); Lewis v. Erie Cnty. Med. Ctr. Corp., 907 F. Supp.

2d 336, 346 (W.D.N.Y. 2012) (citation omitted).

6

1. Individual Liability

a. Title VII

In its previous Memorandum-Decision and Order on Defendants' motion to dismiss, the

Court dismissed Plaintiff's Title VII claims as against Defendant Barber because Title VII does

not impose individual liability. See Dkt. No. 22 at 27. In her Third Supplemental Complaint,

Plaintiff alleges multiple claims stemming from Title VII against Defendants Barber, Tyler, and

Nayor. See Dkt. No. 78 at 25-28. Defendants argue that these claims should be dismissed for the

same reasons the Court previously dismissed the Title VII claims against Defendant Barber. See

Dkt. No. 90-3 at 8.

As the Court has previously stated, Title VII does not impose individual liability. See

Mandell, 316 F.3d at 377. Therefore, Defendants' motion for summary judgment is granted as to

Plaintiff's sex discrimination, retaliation, and hostile work environment claims against Defendants

Barber, Tyler, and Nayor.

b. NYSHRL § 296

"'The NYSHRL allows for individual liability under two theories: [i] if the defendant has

"an ownership interest" in the employer or has "the authority to hire and fire employees," Tomka

v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (discussing N.Y. Exec. Law § 296(1)), [or] [ii]

if the defendant aided and abetted the unlawful discriminatory acts of others, N.Y. Exec. Law §

296(6).'" Gorman v. Covidien, LLC, 146 F. Supp. 3d 509, 521 (S.D.N.Y. 2015) (quoting

E.E.O.C. v. Suffolk Laundry Servs., Inc., 48 F. Supp. 3d 497, 523 (E.D.N.Y. 2014)).

Defendants do not argue that Defendants Barber, Tyler, and Nayor cannot be individually

liable under the NYSHRL. See Dkt. No. 90-3 at 9. Rather, Defendants argue that Plaintiff cannot

succeed on the merits of her claims. Accordingly, the Court will analyze Plaintiff's NYSHRL

7

claims on the merits.

2. Discrimination

Title VII makes it unlawful for an employer to "fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's race, color, religion,

sex, or national origin." 42 U.S.C. § 2000e–2(a)(1). In Bostock v. Clayton County, 140 S. Ct.

1731, 1747 (2020), the Supreme Court explained that "Title VII prohibits all forms of

discrimination because of sex, however they may manifest themselves or whatever other labels

might attach to them." Both Bostock and Zarda v. Altitude Express, Inc., 883 F.3d 100, 120-21

(2d Cir. 2018), make clear that discrimination on the basis of an individual's sexual orientation or

gender expression is prohibited by Title VII. See Bostock, 140 S. Ct. at 1747.

Claims of employment discrimination brought pursuant to Title VII are analyzed under the

familiar burden-shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802–03 (1973). "Under this framework, a plaintiff must first establish a prima facie case of

discrimination." Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010) (citation omitted).

In order to plead a plausible claim of Title VII discrimination, the plaintiff must allege the

following: (1) she is a member of a protected class; (2) satisfactory job performance (3) she

suffered an adverse employment action; and (4) the adverse action took place under circumstances

giving rise to the inference of discrimination. See Fahrenkrug v. Verizon Servs. Corp., 652 Fed.

Appx. 54, 56 (2d Cir. 2016) (citing Montana v. First Fed. Sav. & Loan Ass'n of Rochester, 869

F.2d 100, 106-07 (2d Cir. 1989); McDonnell Douglas, 411 U.S. at 802-05).

In her Third Supplemental Complaint, Plaintiff alleges that she was discriminated against

because of her gender non-conformity and her sexual orientation. See Dkt. No. 78 at 25-26, 28-

8

29. With respect to Plaintiff's claim that she was discriminated against because of her gender non-

conformity, Defendants make three arguments. See Dkt. No. 90-3 at 9-12. First, Defendants

argue that Plaintiff is ordered to search, jail, and transport females as part of her job as a police

officer – not in order to highlight her gender non-conformity. See id. Second, Defendants argue

that the law does not require that Plaintiff be treated differently than her fellow female police

officers because of her gender non-conformity. See id. at 10. Finally, Defendants argue that

Plaintiff's gender discrimination claim must fail because she cannot demonstrate that her job

performance was satisfactory, that she suffered an adverse employment action, or that the

circumstances give rise to an inference of discrimination. See id. at 11-12.

As to Plaintiff's claim that she was discriminated against on the basis of her sexual

orientation, Defendants argue that it is Plaintiff – not Defendants – who seek differential treatment

on the basis of sexual orientation. See Dkt. No. 90-3 at 15. Specifically, Defendants argue that

the policies at issue do not treat individuals differently because of their sexual orientation; rather,

all individuals are treated the same, regardless of their sexual orientation. Alternatively,

Defendants argue that the policies at issue are based on mandated state and federal regulations and

that abrogation of those policies would force Defendants out of compliance with these regulations.

See Dkt. No. 90-3 at 15.

In opposition, Plaintiff argues that there exist questions of material fact as to whether

Defendants discriminated against Plaintiff on the basis of her sexual orientation and/or gender

non-conformity, thereby precluding summary judgment. See Dkt. No. 102 at 7. Plaintiff argues

Defendants failure to "rely upon [Plaintiff's] sexual orientation or gender nonconformance in

ordering [Plaintiff] to search, jail, or transport female detainees and prisoners" constitutes

discrimination. See id. at 8.

9

a. Satisfactory Job Performance

Defendants concede that Plaintiff is a member of a protected class. See Dkt. No. 90-3 at

11. Thus, the Court's analysis will start with Defendants' argument that Plaintiff cannot

demonstrate satisfactory job performance. See id. at 11-12.

Defendants argue that Plaintiff's many employment violations are the cause of her repeated

discipline and belie Plaintiff's claims of satisfactory job performance. See Dkt. No. 90-3 at 18-19.

Defendants contend that Plaintiff has been disciplined for a variety of misconduct which includes

insubordination, abandonment of her post, and directing vile language and threats to her co-

workers and members of the public. See id. at 18.

Plaintiff was issued a notice of discipline dated October 14, 2015, which alleged the

following:

At approximately 5:30AM on July 29, 2015, in response to a

request from Officer Christopher Cady that you come in to the

station to allow a female prisoner to use the bathroom. In the patrol

room, in the presence of other officers and the female prisoner, you

spoke to other officers and Sgt. Michael Nelson in a loud and irate

manner, saying that you should not be required to take the prisoner

to use the bathroom. You acknowledged this behavior in a later

email. You forcefully threw your trash down in the patrol room,

and continued to yell at Sgt[.] Nelson in the Sergeant's Office such

that those in the patrol room could hear you.

Dkt. No. 90-1 at ¶¶ 147-48. In an email regarding the incident, Plaintiff does not deny that the

exchange happened and admits that she was "irate" and "loud" during the interaction. See Dkt.

No. 90-35 at 50. Plaintiff now claims that she admitted to some of the underlying facts, but does

not believe that she was insubordinate. See Dkt. No. 104 at ¶ 150.

Subsequently, Plaintiff was issued a notice of discipline dated July 27, 2016, which

alleged the following:

10

At approximately 11:00PM on April 18, 2016[,] Sgt. Ted Schwartz

spoke to you (Officer Sarah Crews) about following up on a case

that occurred on your beat the previous day and you had failed to

generate a report on. Sgt. Schwartz informed you that by not

documenting your initial interactions with the alleged victim it

appeared that you were not doing your job. You responded to

Sergeant Schwartz "I don't give a fuck what it looks like". When

Sergeant Schwartz asked you why you were raising your voice, you

responded by saying "I got it". You then informed Sergeant

Schwartz that he was "being a tough guy" because he is a new

Sergeant. You continued to argue with Sgt. Schwartz before

complying with his order to follow up on the investigation.

Dkt. No. 90-1 at ¶¶ 152-53. In her deposition, Plaintiff admits to raising her voice, stating "I don't

give a fuck what it looks like[,]" and using words to the effect of the "tough guy" comment to

Sergeant Schwartz in the presence of another officer. See Dkt. No. 90-17 at 92-95.

Plaintiff was issued a notice of discipline dated January 10, 2019. See Dkt. No. 90-13.

The notice of discipline includes a number of allegations of misconduct stemming from separate

interactions with citizens and fellow police officers. See id. One allegation is that Plaintiff

forcibly and unlawfully arrested a minor in possession of alcohol and addressed the minor in a

manner inconsistent with the Department's rules and regulations, which resulted in the filing of a

notice of claim against the City by the minor. See id. at 2-3. The notice of discipline also alleges

that Plaintiff made the following statement to a fellow officer: "You can go fuck yourself." See

id. at 4. On the same day, during the course of a conversation with a supervisor, Plaintiff

repeatedly stated something to the effect of "this is bullshit" in response to a supervisor's

directions and in reference to the searching and jailing policies. See id. There were also repeated

complaints following citizen encounters in which Plaintiff was allegedly unnecessarily rude and

confrontational with citizens. See id. at 5-7. Finally, the notice of discipline included allegations

that Plaintiff failed to convey important information to dispatch and was rude to dispatch

11

personnel. See Dkt. No. 90-13 at 6-7.

Plaintiff does not admit to the charges, but admits to many of underlying facts. See Dkt.

No. 104 at ¶ 159. Specifically, Plaintiff admits to arresting the minor in possession of alcohol,

using physical force and stating words to the effect of those alleged in the notice of discipline.

See Dkt. No. 90-18 at 56-59, 63-64. Plaintiff also admits to directing the work "fuck" at a fellow

officer as alleged in the notice.5 See id. at 66-67. Additionally, Plaintiff admits that she

repeatedly used the term "bullshit" during her conversations with a supervisor as alleged in the

notice of discipline. See id. at 66-67, 69. Plaintiff also admits to making the statements alleged

by the disgruntled citizens, arguing only that they sound more "harsh" when taken out of context.

See id. at 68-71. Finally, Plaintiff admits to the underlying facts regarding her interactions with

dispatch as described in the notice of discipline. See id. at 76-77.

In the most recent notice of discipline, dated September 25, 2019, there are a number of

allegations of misconduct including violation of traffic laws, insubordination, failure to respond

when directed, and directing hostile language at fellow officers. See Dkt. No. 90-5. The notice of

discipline alleges that Plaintiff passed school buses while they were stopped and had lights on and

stop signs out. See Dkt. No. 90-5 at 3. When the school crossing guard advised Plaintiff not to

pass the stopped school buses, Plaintiff responded "I can go wherever I want." See id. Plaintiff

admits to passing the school buses while they had their signs and lights out and using words to the

effect alleged in the notice of discipline. See Dkt. No. 90-18 at 104-07. The notice of discipline

also alleges that on one occasion, when she was unhappy about her beat assignment, Plaintiff

raised her voice at her supervisor and questioned his decision. See Dkt. No. 90-5 at 4. Plaintiff

5 Notably, Plaintiff admits that she has, on multiple occasions, directed the word "fuck" at

fellow officers when she feels that she is being discriminated against. See Dkt. No. 90-18 at 66.

12

then took personal leave, stating in a text message that "shift can be short all night, not my

problem." See id. Plaintiff claims that she does not recall raising her voice, but admits to

questioning her supervisor's decision and sending the text message as alleged. See Dkt. No. 90-18

at 108, 110.

On another occasion, it is alleged that while working a "quality of life detail," Plaintiff

received a call from dispatch to respond to a noise complaint. See Dkt. No. 90-5 at 4. Plaintiff

allegedly responded to dispatch that the call was a "beat call," which resulted in a complaint from

the dispatch supervisor to Plaintiff's supervisor. See id. When Plaintiff's supervisor questioned

her about the incident, Plaintiff allegedly stated, among other things, "I am sick of you guys

misusing the detail car and if you're going to continue I will not do the detail" and "I'm done with

this fucking detail." See id. Plaintiff admits to having this interaction with dispatch and her

supervisor. See Dkt. No. 90-18 at 114-15. On yet another occasion, it is alleged that Plaintiff,

when directed to search a female detainee, said to the detainee "Do you understand that you're

[sic] female officer is a bull dyke?" See Dkt. No. 90-5 at 5. Plaintiff admits to using this

language during her interaction with the suspect. See Dkt. No. 88-89.

The notice of discipline further alleges that Plaintiff failed to respond to a call for

assistance from a fellow officer despite the fact that she was in the area. See Dkt. No. 90-5 at 5-6.

It is alleged that Plaintiff left a potentially life threatening situation without responding to a call

for assistance. See id. at 6. Plaintiff admits to leaving the scene without responding to the request

for assistance. See Dkt. No. 90-18 at 125, 127-30.

On another occasion in which Plaintiff was again dissatisfied with her beat assignment,

she told her supervisors that they are "the worst supervisors." See Dkt. No. 90-5 at 6. Upon being

told not to take the assignment personally and to keep up the good work, Plaintiff allegedly

13

stormed out of the office stating "The fuck I will, you're going to see the new meaning of the word

lazy." See id. Plaintiff again admits to this conduct. See Dkt. No. 90-18 at 118-19. There are

also multiple allegations that Plaintiff told fellow officers and supervisors that they were "next on

[her] list" and that she was putting them on "notice." See Dkt. No. 90-5 at 7-8. Plaintiff admits to

stating this, arguing that she was informing these officers that she was aware of their

discriminatory intentions. See Dkt. No. 90-18 at 123, 137.

Finally, the notice of discipline alleges that upon being called to assist with the arrest of a

subject, Plaintiff stuck up her middle finger at a fellow officer while repeatedly mouthing and

saying "Fuck you" and "I'm going to get you" to this officer. See Dkt. No. 90-5 at 8. Plaintiff

admits to giving this fellow officer the finger. See Dkt. No. 90-18 at 139-40. However, Plaintiff

denies saying that she will "get him" later. See Dkt. No. 90-18 at 18-19.

Plaintiff does not dispute that these events happened, but rather, she argues that the many

notices of discipline are an "orchestrated effort" to "build a record" against her and, ultimately,

justify the termination of her employment. See Dkt. No. 102 at 4-5. Although Plaintiff disagrees

with the propriety of discipline stemming from these incidents, it is clear that the conduct alleged

did, in fact, occur. The conduct to which Plaintiff admits certainly violated the Department's rules

and regulations. Therefore, Plaintiffs' conduct cuts against the argument that her job performance

was satisfactory.

b. Adverse Employment Action

"An adverse employment action is 'a materially adverse change in the terms and conditions

of employment.'" Fahrenkrug, 652 Fed. Appx. at 56 (quoting Sanders v. NYC Human Res.

Admin., 361 F.3d 749, 755 (2d Cir. 2004)). "'Employment actions that [this Court has] deemed

sufficiently disadvantageous to constitute an adverse employment action include a termination of

14

employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a

material loss of benefits, significantly diminished material responsibilities, or other indices unique

to a particular situation.'" Id. (quoting Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)).

Reprimands and excessive scrutiny of an employee can contribute to

a finding that an adverse employment action has taken place.

"However, courts in this circuit have found that reprimands, threats

of disciplinary action and excessive scrutiny do not constitute

adverse employment actions in the absence of other negative results

such as a decrease in pay or being placed on probation."

Imperato v. Otsego Cty. Sheriff's Dept., No. 3:13-cv-1594, 2016 WL 1466545, *16 (N.D.N.Y.

Apr. 14, 2016) (quoting Uddin v. City of New York, 427 F. Supp. 2d 414, 429 (S.D.N.Y. 2006))

(internal quotation omitted). Additionally, loss of benefits, such as the recision of vacation time,

can constitute an adverse action. Delgado v. Triborough Bridge & Tunnel Auth., 485 F. Supp. 2d

453, 464 (S.D.N.Y. 2007).

Although Defendants argue that Plaintiff did not suffer an adverse employment action, the

Court disagrees. The notices of discipline required Plaintiff to forfeit forty-eight hours of vacation

time. See Dkt. No. 90-39 at 3; Dkt. No. 90-40 at 3. Subsequently, she was suspended without

pay. See Dkt. No. 90-13 at 7. In the most recent notice of discipline, the penalty sought is

termination of her employment. See Dkt. No. 90-5 at 9. These penalties, although they are still

being arbitrated pursuant to Plaintiff's collective bargaining agreement, qualify as adverse actions.

See Delgado, 485 F. Supp. 2d at 464.

c. Inference of Discrimination

Plaintiff argues that Defendants' search, jail, and transport policies are based on gender

norms and, therefore, the orders given to Plaintiff arising from those polices constitute

discrimination on the basis of her sexual orientation and gender non-conformity. See Dkt. No.

15

102 at 7. Essentially, Plaintiff argues that by ignoring Plaintiff's gender non-conformity and

sexual orientation, Defendants discriminated against Plaintiff. See id. at 8-9. Plaintiff's desire is

that she be treated differently than her fellow officers on the basis of her sexual orientation and

gender nonconformity. See id. at 9-10.

Notably, in the section of her brief addressing her discrimination claim, Plaintiff does not

address Defendants' argument that there can be no inference of discrimination. See id. at 7-10.

Rather, Plaintiff repeatedly, in a conclusory fashion and without citation, argues that Defendants'

failure to treat Plaintiff differently because of her sexual orientation and gender non-conformity

constitute discrimination. See id. The Court believes this lack of argument as to the applicability

of an inference of discrimination is because there can be no inference of discrimination on this

record. Further, there is no evidentiary support for Plaintiff's conclusory allegations that she was

ordered to comply with the policies at issue to highlight her gender non-conformity. Thus, the

Court finds that the evidence does not give rise to an inference of discrimination.6 Although

Plaintiff is a member of a protected class and has suffered an adverse employment action, the

Court finds, drawing all reasonable inferences in Plaintiff's favor, that she cannot demonstrate an

inference of discrimination. Accordingly, Defendants' motion is granted as to Plaintiff's

6 Plaintiff's argument is based on the premise that the policies, which require female

officers to search, jail, and transport female subjects, are based on hetero-normative ideas that

males are sexually attracted to females and females are sexually attracted to males. See Dkt. No.

102 at 7. Even if that were the case – which it very well may be – that does not change the fact

that what Plaintiff seeks is to be discriminated against on the basis of her sexual orientation and

gender non-conformity. Plaintiff may believe the current policies to favor her heterosexual

colleagues, but the Court urges Plaintiff to consider the implications of what she seeks: a judicial

ruling which not only allows, but actually requires, employers to treat their homosexual and

gender non-conforming employees differently solely on the basis of their sexual orientation or

gender expression.

16

discrimination claims under Title VII and the NYSHRL.

2. Retaliation

Title VII prohibits employers from discriminating against an employee who "has opposed

any practice made an unlawful employment practice by this subchapter" or "has made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding, or hearing[.]" 42

U.S.C. § 2000e–3(a). Courts analyze Title VII retaliation claims according to the McDonnell

Douglas burden-shifting framework. See Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003)

(citation omitted).

To make out a prima facie case of retaliation under Title VII, a plaintiff must adduce

evidence sufficient to permit a rational trier of fact to find "'(1) that [ ] he engaged in protected

participation or opposition under Title VII ..., (2) that the employer was aware of this activity, (3)

that the employer took adverse action against the plaintiff, and (4) that 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.'" Kessler v. Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199,

205–06 (2d Cir. 2006) (quotation and other citations omitted).

In support of their motion, Defendants argue that Plaintiff was not subjected to retaliation,

rather, that the notices of discipline upon which Plaintiff bases her claim demonstrate a history of

professional misconduct. See Dkt. No. 90-3 at 18. Defendants claim that Plaintiff's multiple acts

of insubordination, abandonment of her post, and foul language and threats towards fellow

officers and the public are the basis of the notices of discipline. See id. at 18-19. Alternatively,

7 The following claims are dismissed as against all Defendants: Claim 1 (Title VII sex

discrimination - gender non-conformity), Claim 2 (Title VII sex discrimination - sexual

orientation), Claim 5 (NYSHRL sex discrimination), and Claim 6 (NYSHRL sexual orientation

discrimination).

17

Defendants argue that Plaintiff cannot demonstrate a prima facie case of retaliation because the

notices of discipline are too attenuated and she cannot demonstrate that Defendants' reasons are

pretextual. See id. at 10. In opposition, Plaintiff argues only that questions of material fact

remain as to whether she was retaliated against because of her engagement in protected activities.

See Dkt. No. 102 at 10. Specifically, Plaintiff argues that she suffered a broad range of adverse

employment actions. See id. at 10-11.

The record clearly indicates that Plaintiff engaged in protected activity and that Defendants

were aware of Plaintiff's activity. Plaintiff complained about Defendants' searching, jailing, and

transporting policies both formally and informally on many occasions. See Dkt. No. 90-1 at ¶¶

89-91, 112-39. The record also indicates that Defendants were aware of this activity. See id.

Additionally, for the same reasons described above, the Court finds that Plaintiff suffered an

adverse employment action. Specifically, Plaintiff was forced to forfeit vacation time, subjected

to an unpaid suspension, and faces termination of her employment. See Dkt. No. 90-5 at 9; Dkt.

No. 90-13 at 7; Dkt. No. 90-39 at 3; Dkt. No. 90-40 at 3. Thus, the only question remaining for

this claim is whether there is a causal connection between the notices of discipline and Plaintiff's

complaints about the policies at issue.

The Court previously detailed Plaintiff's extensive disciplinary history. Plaintiff has faced

multiple allegations of a variety of misconduct including violating traffic laws, insubordination,

failing to respond when directed, and directing hostile language at fellow officers. See Dkt. Nos.

90-1, 90-5, 90-13. Additionally, as the Court previously noted, Plaintiff admits to much, if not all,

of the underlying conduct. Plaintiff's only argument as to this point is that Defendants pursued

disciplinary action against Plaintiff in an orchestrated effort to "build a record against [Plaintiff]"

and seek her termination. See Dkt. No. 102 at 4-5. Given Plaintiff's admissions to the conduct

18

underlying the notices of discipline, no reasonable jury could find that Defendants acted with a

retaliatory motive when issuing the notices of employment.

Although Plaintiff may not accept the propriety of the disciplinary action, that does not

absolve her of the misconduct, much of which she admits. Although an individual certainly has

the right to object to treatment he or she believes to be discriminatory, those objections do not

entirely insulate that individual from discipline when they repeatedly violate the rules and

regulations of their employers.8

Apart from her conclusory allegations, Plaintiff has offered no evidence to support her

theory that Defendants issued the notices of discipline to retaliate against Plaintiff for opposing

Defendants' policies. See EEOC v. Bloomberg L.P., 967 F. Supp. 2d 816, 848 n.21 (S.D.N.Y.

2013) (citing Spector v. Bd. of Trs. of Cmty. Tech Colls., 316 Fed. Appx. 18, 21 (2d Cir. 2009))

("Where isolated, individual incidents of alleged retaliation are supported solely by conclusory

allegations of retaliatory motives, such as here, summary judgment is appropriate in favor of the

defendant"). When an individual has a disciplinary record such the one alleged here, and when

that individual admits to committing the conduct underlying those allegations – as Plaintiff does –

the inference of a retaliatory motive dissipates. In such circumstances, a rational trier of fact is

left only with the conclusion that the discipline was pursued for a non-discriminatory purpose.

Plaintiff also suggests that Defendants denying her request to serve as the LGBTQ liaison

for the Department was part of the ongoing retaliation. However, Plaintiff applied for this

position while she was on disciplinary suspension. See Dkt. No. 90-1 at ¶¶ 163, 167-68. Plaintiff

has failed to demonstrate a causal connection between her objections and the rejection of her

8 Perhaps if Plaintiff had alleged that other officers engaged in similar conduct, but were

not disciplined, then a retaliatory motive might be found under the doctrine of disparate treatment.

However, Plaintiff makes no such allegation.

19

application to serve as LGBTQ liasion. Plaintiff has presented no evidence to contest Defendants'

justification that her application was denied due to an ongoing investigation into her professional

misconduct.

The Court finds that, drawing all reasonable inferences in Plaintiff's favor, she cannot

demonstrate a causal connection between the protected activity and the adverse employment

action. Accordingly, Defendants' motion for summary judgment is granted as to Plaintiff's

retaliation claims.

3. Hostile Work Environment

To state a hostile work environment claim in violation of Title VII, a plaintiff must set

forth facts that would tend to show that the complained of conduct: "(1) 'is objectively severe or

pervasive, that is, ... the conduct creates an environment that a reasonable person would find

hostile or abusive'; (2) creates an environment 'that the plaintiff subjectively perceives as hostile

or abusive'; and (3) 'creates such an environment because of'" a characteristic protected by Title

VII. Patane, 508 F.3d at 113 (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001)); see

also Gregory, 243 F.3d at 692 (indicating that any characteristic protected by Title VII is

sufficient to satisfy the third element).

"In order to establish a hostile work environment claim under Title VII, a plaintiff must ...

show that 'the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the victim's employment and create an

abusive working environment.'" Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.

2010) (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)). "A plaintiff must show

not only that she subjectively perceived the environment to be abusive, but also that the

environment was objectively hostile and abusive." Id. In assessing the hostility of a work

20

environment, courts examine the "totality of the circumstances." Hayut v. State Univ. of N.Y., 352

F.3d 733, 745 (2d Cir. 2003). In particular, courts "consider[ ] a variety of factors 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.'" Gorzynski, 596 F.3d at 102 (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 23 (1993)).

"A plaintiff need not show that her hostile working environment was both severe and

pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination

of these elements, to have altered her working conditions." Pucino v. Verizon Wireless

Commc'ns, 618 F.3d 112, 119 (2d Cir. 2010) (citations omitted). In order to be considered

pervasive, a plaintiff must show "that the incidents were 'sufficiently continuous and concerted.'"

Brennan v. Metropolitan Opera Ass'n, Inc, 192 F.3d 310, 318 (2d Cir. 1999) (quoting Perry v.

Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)); see also Robinson v. Purcell Constr. Corp.,

859 F. Supp. 2d 245, 255 (N.D.N.Y. 2012) (finding five "crude and offensive" gender-based

comments were "neither pervasive nor severe"). As for severity, the "ordinary tribulations of the

workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional

teasing" are not objectively severe enough to establish a hostile work environment. Faragher v.

City of Boca Raton, 524 U.S. 775, 778 (1998). On the other hand, even a single incident—if it is

sufficiently severe—can create a hostile work environment if it transforms the plaintiff's

workplace. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). The incidents must be more

than episodic; "[the incidents] must be sufficiently continuous and concerted in order to be

deemed pervasive." Id. Finally, "[b]eyond demonstrating a hostile work environment, a plaintiff

must show a basis for imputing the objectionable conduct to the employer." Gorzynski, 596 F.3d

21

at 103 (citation omitted).

In its previous Memorandum-Decision and Order, the Court dismissed Plaintiff's Title VII

hostile work environment claim for failure to sufficiently allege that she was subject to severe or

pervasive conduct. See Dkt. No. 22 at 21-24. However, in the operative complaint, Plaintiff

continues to include a Title VII hostile work environment claim. See Dkt. No. 78 at 28. In their

motion for summary judgment, Defendants argue that Plaintiff's hostile work environment claim

should continue to be dismissed for the reasons previously described by the Court as Plaintiff has

failed to allege any new comments or actions to support this claim. See Dkt. No. 90-3 at 22. In

opposition, Plaintiff argues only that she is subject to a hostile work environment because she is

repeatedly subjected to "'monitoring,' internal investigations, notices of discipline[,]" and a notice

of termination. See Dkt. No. 102 at 11.

The Court has reviewed the operative complaint and compared its allegations with those in

the initial complaint. Upon review, the Court finds that Plaintiff has not alleged any additional

statements or actions by Defendants which could demonstrate that Plaintiff was subjected to a

hostile work environment. The new factual allegations relate primarily to Plaintiff being ordered

to conduct searches on female subjects, being passed over for promotions, being assigned to

unfavorable beats, and the notices of discipline. See Dkt. No. 78 at ¶¶ 105-64. Apart from the

allegations that the Court previously considered on the motion to dismiss, there are no allegations

that Plaintiff was subjected to gender-based comments, abusive language, or physically

threatening or humiliating conduct from Defendants. The conduct which the Court previously

considered includes the "McLovin" incident. See Dkt. No. 22 at 21-22. The "McLovin" incident,

although clearly inappropriate, is the sort of conduct described in Faragher as "ordinary

tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes,

22

and occasional teasing" and, therefore, is not objectively severe enough to establish a hostile work

environment. See Faragher, 524 U.S. at 778. Neither is the conduct "sufficiently continuous and

concerted in order to be deemed pervasive." See Alfano, 294 F.3d at 374. This single incident

occurred very early in Plaintiff's employ with the Department, which began in 2007, and the

officers responsible forfeited leave time and were required to complete harassment training. See

Dkt. No. 111 at ¶¶ 205-13.

Indeed, Plaintiff's only argument is that her repeated discipline constitutes sufficiently

severe and pervasive conduct. See Dkt. No. 102 at 11. As the Court has explained, Plaintiff

admitted to the conduct underlying most – if not all – of the violations alleged in the notices of

discipline. Thus, Defendants were investigating and acting on legitimate concerns of misconduct

on the part of an employee. Such action does not create a hostile work environment. See

Choulagh v. Holder, 528 Fed. Appx. 432, 438 (6th Cir. 2013) (finding that disciplinary actions are

not severe and pervasive when the plaintiff does not put forth evidence refuting the disciplinary

charges); see also Harewood v. New York City Dep't of Educ., No. 18-CV-5487, 2020 U.S. Dist.

LEXIS 226140, *47 (S.D.N.Y. Nov. 30, 2020) (collecting cases) (finding that negative

performance reviews and disciplinary letters are not sufficiently severe or pervasive to give rise to

a hostile work environment claim).

Accordingly, the Court, drawing all reasonable inferences in Plaintiff's favor, finds that

Plaintiff cannot establish that Defendants' conduct was sufficiently severe or pervasive to create a

hostile work environment under Title VII. Defendants' motion for summary judgment as to

Plaintiff's Title VII hostile work environment claim is, therefore, granted.

C. Section 1983 Claim

"Section 1983 provides a federal cause of action against any person who, acting under

23

color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290

(1999) (citing 42 U.S.C. § 1983). "A section 1983 plaintiff ... bears the burden of establishing the

violation of a federally protected constitutional or statutory right which was the result of state

action, or action 'under color of law.'" Petrosky v. N.Y. State Dep't of Motor Vehicles, 72 F. Supp.

2d 39, 61 (N.D.N.Y. 1999) (citations omitted). Not only must the conduct deprive the plaintiff of

rights and privileges secured by the Constitution, but the actions or omissions attributable to each

defendant must be the proximate cause of the injuries and consequent damages that the plaintiff

sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y. 1991) (citing Martinez v.

California, 444 U.S. 277, 285 (1980)). For a plaintiff to recover in a § 1983 action, he must

establish a causal connection between the acts or omissions of each defendant and any injury or

damages he suffered as a result of those acts or omissions. See id. (citing Mt. Healthy City Sch.

Dist. Bd. of Educ. v, Doyle, 429 U.S. 274, 286 (1977)) (other citation omitted).

The Due Process Clause of the Fourteenth Amendment protects persons against

deprivations of "life, liberty, or property." U.S. Const. Amend. XIV § 1. However, the scope of

substantive due process is very limited. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

The Due Process Clause "is phrased as a limitation on the State's power to act, not as a guarantee

of certain minimal levels of safety and security." DeShaney v. Winnebago Cty. Dept. of Soc.

Serv., 489 U.S. 189, 195 (1989).

The Court previously dismissed Plaintiff's Section 1983 due process claim for failure to

assert any liberties that she has been deprived of under the color of state law. See Dkt. No. 22 at

26. However, in the operative pleading, Plaintiff continues to assert the exact same claim. See

Dkt. No. 78 at 32. Review of the complaint makes clear that, apart from including Defendant

Tyler, Plaintiff has not made a single alteration to her allegations under this claim. See id.

24

Additionally, Plaintiff's briefing does not state what liberties Plaintiff claims to have been

deprived of, instead only generally claiming to have been deprived of constitutional rights. See

Dkt. No. 102 at 14. Thus, Plaintiff's due process claim fails for the same reasons described in the

Court's previous order. See Dkt. No. 22 at 26.

Because of the language in the complaint, the Court previously construed Plaintiff's

complaint to include a claim for violation of the Equal Protection clause. See id. However, the

Court did not address the merits of Plaintiff's Equal Protection claim because it was not raised by

the parties in the motion to dismiss. See id. The operative pleading includes identical language

and, thus, the Court will continue to construe the complaint to include an Equal Protection claim.

Defendants argue that Plaintiff's Equal Protection claim should be dismissed because she

has failed to demonstrate that Defendants' reasons for her treatment are pre-textual and that she

was treated differently than similarly situated individuals. See Dkt. No. 90-3 at 23-24. Plaintiff

makes no argument in support of her equal protection claim. See Dkt. No. 102 at 12-14. Because

Plaintiff does not oppose Defendants' motion for summary judgment as to the Equal Protection

claim, the Court finds that Plaintiff has abandoned this claim and grants Defendants' motion for

summary judgment. See Feacher v. Intercontinental Hotels Group, 563 F. Supp. 2d 389, 399

(N.D.N.Y. 2008); see also Stokes v. City of New York, No. 05-CV-007, 2007 WL 1300983, *14

(E.D.N.Y. May 3, 2007) (collecting cases).

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submission and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendants' motion for summary judgment (Dkt. No. 90) is GRANTED;

and the Court further

25

ORDERS that Plaintiff's cross-motion for summary judgment (Dkt. No. 107) is DENIED;

and the Court further

ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close

this case; and the Court further

ORDERS that the Clerk of the Court serve a copy of this Memorandum-Decision and

Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: January 26, 2021 Me if L legals urls, a

Albany, New York Mae A. D’Agosting~/

U.S. District Judge

26