Arnold v. Town of Camillus, New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

PATRICIA ARNOLD,

Plaintiff,

vs. 5:20-CV-1364

(MAD/ML)

TOWN OF CAMILLUS, et. al.,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

BOSMAN LAW FIRM, LLC AJ BOSMAN, ESQ.

3000 McConnellsville Road ROBERT J. STRUM, ESQ.

Blossvale, New York 13308

Attorneys for Plaintiff

BOND, SCHOENECK & KING, PLLC DAVID M. FERRARA, ESQ.

One Lincoln Center KSENIYA PREMO, ESQ.

Syracuse, New York 13202 HANNAH K. REDMOND, ESQ.

Attorneys for Defendants

except for John and Jane Doe(s)

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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On October 13, 2020, Plaintiff Patricia Arnold commenced this action in Onondaga

County New York Supreme Court. See Dkt. No. 2. On November 4, 2020, Defendants removed

the action to this Court pursuant to 28 U.S.C. § 1441(a). See Dkt. No. 1 at ¶ 7.

In her initial complaint, Plaintiff asserted claims for discrimination and retaliation because

of her gender in violation of 42 U.S.C. § 1983 and the New York State Human Rights Law

("NYSHRL") against Defendants Town of Camillus (the "Town"); Camillus Police Chief Thomas

Winn; Camillus Police Captain James Nightingale; Town Supervisor Mary Ann Coogan;

Camillus Town Board members David Callahan, Joy Flood, Dick Griffo, Steven James, Mike

LaFlair, and Mary Lubar; John Doe(s); and Jane Doe(s). See Dkt. No. 2 at ¶¶ 35-48. Plaintiff

also asserted a claim for intentional or reckless infliction of emotional distress against Defendant

Nightingale. See id. at ¶¶ 49-52. Lastly, Plaintiff asserted claims for tortious interference and

prima facie tort against Defendants Nightingale and Winn. See id. at ¶¶ 53-59.

On July 16, 2021, this Court granted Plaintiff's motion to remand her state law claims to

Onondaga County Supreme Court so that she could file a motion for leave to file a late notice of

claim. See Dkt. No. 42. This Court retained jurisdiction over Plaintiff's federal claims and stayed

the case pending a decision on Plaintiff's motion in state court. See Dkt. No. 44. On January 7,

2022, the Onondaga County Supreme Court denied Plaintiff's motion for leave to file a late notice

of claim and dismissed her state law claims. See Dkt. No. 49-1.

On May 3, 2022, Plaintiff filed an amended complaint. See Dkt. No. 56. Defendants filed

a motion to dismiss the amended complaint. See Dkt. No. 57. In a March 9, 2023,

Memorandum-Decision and Order, the Court granted in part and denied in part Defendants'

motion, dismissing Plaintiff's claims for intentional or reckless infliction of emotional distress

against Defendant Nightingale and prima facie tort and tortious interference against Defendants

Winn and Nightingale. See Dkt. No. 61 at 34-38. The Court further found that Plaintiff "failed to

plausibly allege a custom or policy that could support" imposing municipal liability on the Town

but concluded that Plaintiff plausibly alleged that the Town was subject to Monell1 liability for

Defendants Winn and Coogan's alleged failure to properly investigate Plaintiff's complaints. Id.

at 15-16. The Court also granted Defendants' motion to dismiss pertaining to Plaintiff's § 1983

1 Monell v. Dep't of Social Servs., 436 U.S. 658 (1978).

claims against Defendants Winn, Coogan, and the Town Board Members. See id. at 17-24.

Finally, the Court dismissed Plaintiff's NYSHRL claims against the individual Defendants

because of Plaintiff's failure to serve a notice of claim. See id. at 25-30.

Defendants Nightingale and the Town filed a motion for summary judgment with this

Court on December 15, 2023. See Dkt. No. 92. However, on December 22, 2023, the New York

State Supreme Court Appellate Division, Fourth Judicial Department modified the Onondaga

County Supreme Court's Order and granted Plaintiff leave to serve a late notice of claim

pertaining to her state law claims. See Dkt. No. 93-1. Plaintiff subsequently filed a notice of

claim with the Camillus Town Clerk on December 27, 2023. See Dkt. No. 93-2. On January 11,

2024, this Court granted Plaintiff permission to amend her complaint to reinstate her state law

claims that were addressed by the Fourth Department. See Text Minute Entry 01/11/2024.

Plaintiff filed a second amended complaint on January 22, 2024. See Dkt. No. 96. In her

second amended complaint, Plaintiff asserts § 1983 claims against Defendants Nightingale and

the Town for gender discrimination and retaliation. See id at ¶¶ 42-49. Plaintiff also sets forth

claims under NYSHRL alleging gender discrimination and retaliation against all Defendants. See

id. at ¶¶ 50-56. Generally, Plaintiff alleges that she was subjected to unwanted physical contact

from Defendant Nightingale, and she was treated less favorably than male police officers based

on a lack of training and instructional opportunities. See id. at ¶¶ 13-41.

Thereafter, the Court granted Defendants' request to withdraw their original memorandum

of law in support of their motion for summary judgment to file a new memorandum of law

addressing all of Plaintiff's claims, including her reinstated state law claims. See Dkt. Nos. 103,

104. Defendants filed a memorandum of law in support of their motion for summary judgment on

April 10, 2024. See Dkt. No. 105. Plaintiff responded in opposition and Defendants replied. See

Dkt. Nos. 110, 113.

Presently before the Court is Defendants' motion for summary judgment and Plaintiff's

opposition to that motion. For the following reasons, Defendants' motion for summary judgment

is granted, and Plaintiff's case is dismissed in its entirety.

II. BACKGROUND

From April 4, 2011, until August 7, 2019, Plaintiff was employed by the Town as a Police

Officer. See Dkt. No. 109-22 at ¶ 1.2 Plaintiff contends that she resigned from this position to

protect her health, but Defendants assert that her resignation was "voluntary." Id.

The parties agree that, during the course of her employment, Plaintiff received training on

numerous topics and that all officers in the department had more than minimal training. Id. at ¶¶

3-4. Plaintiff denies, however, that she "had as much or more training opportunities than men in

the department." Id. at ¶ 4. Plaintiff contends that she was ignored or not allowed to participate

in several trainings such as "SPEAR"3 and "Street Survival" trainings. Id. Plaintiff states that

male officers were given these opportunities, but that she was told she could not attend "Street

Survival" training "because they would have to get two separate hotel rooms because she is

female and could not share a room." Id. Plaintiff agrees that Defendants sought Plaintiff out for

many training opportunities, particularly those which focused on elder abuse and mental health.

See id. at ¶ 5. The parties also agree that "Plaintiff was [] invited to participate in the Honor

2 Pursuant to Local Rule 56.1(a), Defendants filed a statement of material facts in support of their

motion for summary judgment. See Dkt. No. 92-13. Plaintiff also complied with Local Rule

56.1(b) and submitted a response to the statement of material facts. See Dkt. No. 109-22. The

factual background herein is derived primarily from these submissions.

3 During Plaintiff's deposition, she stated she could not remember what "SPEAR" stood for but

that it was a defensive tactics training. See Dkt. No. 109-11 at 200.

Guard and was active in developing the Town's Cadet program." Id. at ¶ 6. Plaintiff became

certified as a General Topics, Academy, and Mental Health First Aid Instructor. See id. at ¶ 7.

Defendants contend that Defendant Winn "invited" Plaintiff to attend a week-long Mental Health

First Aid training in Florida. Id. Plaintiff disputes this and asserts that Lieutenant Daniel

Burlingame was responsible for arranging and suggesting the training to Plaintiff. See id.

Burlingame corroborates Plaintiff's assertion in his affirmation. See Dkt. No. 109-17 at ¶ 8.

Plaintiff admits that she "is unfamiliar with other Officers' training records and lacks

knowledge of anyone who received more training opportunities than she did." Dkt. No. 109-22 at

¶ 8. Defendants claim that Defendant Nightingale was not responsible for approving or denying

training requests made by Plaintiff or the assignment of her overtime. See id. at ¶ 9. In dispute of

this, Plaintiff asserts that "Nightingale was responsible for fielding and forwarding all requests for

training which he failed to do for Plaintiff." Id. Defendants contend that Defendant Winn was

responsible for approving or denying training requests, but Plaintiff states that Defendant Winn

was only responsible for approving trainings which had an expense that had to be approved by the

Town. See id. at ¶ 10. Plaintiff asserts that the Town's own policy places the responsibility of

assigning training "squarely in Nightingale's lap." Id. at ¶ 10 (citing Dkt. No. 109-4). The Town

policy that Plaintiff provided states that "training will be assigned, tracked and administered by

the department training supervisor." Dkt. No. 109-4 at 3. While this is the Town's policy,

Defendant Nightingale states in his deposition that he was "in charge of keeping track of training,

not who goes to training[.]" Dkt. No. 109-20 at 70. Defendant Nightingale further asserts that he

was in charge of "keeping track of training" as Sergeant, but in August of 2018 when he was

promoted to Captain, he became responsible for scheduling training. Id. at 70-72. He contends

that the decisions regarding the approval or denial of training requests were "[u]ltimately up to the

chief of police." Id. at 72.

Regarding instructional opportunities, Defendants assert that "Plaintiff was given several

opportunities to provide instruction" including opportunities instructing ethics and sexual

harassment trainings at the Academy, sexual harassment training with the Town's secretaries,

mental health first aid training to the Town Police Department, and "Below 100 Instructor"

training for a joint-agency group. Dkt. No. 109-22 at ¶ 11. Plaintiff denies this and contends that

despite becoming certified as an instructor in 2014, she was not afforded opportunities to instruct

until 2018. Id. She asserts that the opportunities she was afforded included providing sexual

harassment training to three secretaries and a one-day mental health first aid training which was

scheduled immediately after she told Defendant Winn that she was leaving the Department. See

id. While Defendants claim that Defendant Nightingale invited Plaintiff to provide the "100

Below" training and asked if she would be interested in providing crisis intervention training

("CIT"), Plaintiff states that she never provided "100 Below" training and that she was only asked

about CIT training after she complained about Defendant Nightingale. See id. at ¶ 12; see also

109-20 at 21. According to Defendants, Plaintiff lacked SPEAR training and never made any

requests to receive the training, but Plaintiff argues that this was only because she was never

notified of the training. See Dkt. No. 109-22 at ¶ 13.

In February of 2018, Plaintiff first reported to Defendant Winn that Defendant Nightingale

had engaged in unwanted physical contact with Plaintiff by touching her arm and back during two

separate firearm training sessions that occurred in 2017 and touching her shoulder on another

unspecified occasion. See id. at ¶ 14-15. Defendants contend that Plaintiff told Defendant Winn

that the contact was of a non-sexual nature but made her uncomfortable. See id. at ¶ 14. Plaintiff

asserts that she identified the harassment as "sexual" on an annual evaluation form "but was too

fearful to turn" it in. Id.

Defendants contend that Plaintiff asked that her concerns be kept confidential, she was

adamant she did not want the matter to be further pursued, and she reaffirmed this in her February

2019 evaluation. See id. at ¶ 16. Plaintiff asserts that she was not adamant and that she declined

to file a formal complaint at her 2018 evaluation out of fear of retaliation. See id. Plaintiff states

that she "repeatedly told Winn she was afraid of what will happen if she makes a formal

complaint." Id. She further contends that Defendant Winn told her "that he would place a

'summary' of her complaint in a sealed envelope in her personal file." Id. Defendants state that

Defendant Winn assured Plaintiff that she was protected against retaliation and instructed her to

report additional concerns to himself or a supervisor. See id. at ¶ 17. Plaintiff disputes this,

maintaining that Defendant Winn did not speak of protecting her at the February 2018 meeting,

appeared annoyed, and did nothing to reassure her. See id.

On January 24, 2019, Plaintiff and Defendant Winn met for Plaintiff's 2018 annual

performance review. See id. at ¶ 18. At this meeting, Plaintiff reported two more incidents

involving Defendant Nightingale and expressed her fear of retaliation. See id. at ¶¶ 17-18.

Defendants assert that Defendant Winn reassured Plaintiff that she was protected from retaliation

and reminded her to report any concerns that may arise. See id. Plaintiff contends that Defendant

Winn was "visibly angry and yelled at her" when Plaintiff expressed her fear. Id. at ¶ 17. In her

second amended complaint, Plaintiff claims that "Winn became hostile and aggravated" when she

stated her intention to file a formal complaint at this meeting. Dkt. No. 96 at 6. However,

Plaintiff "admits" in her response to Defendants' statement of material facts that "Winn assured

Plaintiff that she would be protected against retaliation, [and] he reminded her to report any

further concerns of unwanted conduct." Dkt. No. 109-22 at ¶ 18.

At Defendant Winn's request, Plaintiff submitted a written statement on February 6, 2019,

regarding Defendant Nightingale's "unwanted conduct and behavior" that occurred between

March 22, 2017, and January 17, 2019. Id. at ¶ 19. In their respective memoranda of law, the

parties agree that there are six dates listed in the written statement on which Plaintiff alleges

having had an offensive interaction with Defendant Nightingale. See Dkt. No. 105 at 21; Dkt. No.

110 at 7.

On the form, Plaintiff was asked, "During 2018 have you been, or are you currently the

victim of Sexual Harassment?" Dkt. No. 109-2 at 2. Both "yes" and "no" are circled, but "yes"

also has an "x" through it. Id. The word "Sexual" has a line across it and Plaintiff wrote her

initials. Id. She wrote, "on multiple dates, a supervisor unnecessarily touched my arm, should or

back." Id. She included narrative explanations for such occurrences on six different dates. See

id. at 5. Specifically, Plaintiff wrote that on her "first record of personal documentation," she

"realized and began to note that Nightingale was touching only me. He did not make any physical

contact, of any kind, with anyone else." Id. She did not describe the touching. See id. The other

five instances included touching Plaintiff's "right arm with his left arm," standing behind her and

laying "his right hand on [her] right shoulder," touching and resting "his hand on [her] upper back

and shoulder," touching her "with his right hand on [her] back and lightly rub[ing her] back," and

touching her "left elbow and forearm with his right hand and elbow." Id. These instances

occurred when Plaintiff was in training, Nightingale was showing her something on his phone, or

he was sitting next to her at a meeting. See id. The dates are as follows: April 3, 2017, May 15,

2017, August 11, 2017, September 29, 2017, October 10, 2018, and January 17, 2019. See id.

Defendants argue that Plaintiff's April 2017 incident does not contain allegations of any

specific physical contact or a recounting of what occurred and should therefore not be considered

in the Court's consideration of Plaintiff's allegations of sexual harassment. See Dkt. No. 105 at

21, n.8; see also Dkt. No. 109-2 at 5. According to Defendants, Plaintiff only "now claims" that

the conduct and behavior alleged in this action was sexual harassment, but Plaintiff contends that

she stated that the conduct and behavior was "continuing" sexual harassment when she made her

written statement. Dkt. No. 109-22 at ¶ 19. Plaintiff avers that Defendant Winn "had Plaintiff

cross out the word 'sexual' on the first page of the form." Id. at ¶ 17. Plaintiff's desired resolution

was for Defendant Nightingale's "unwanted behavior" to stop, and she verbally reiterated this to

Defendant Winn. Id. at ¶ 20.

In response to Plaintiff's harassment complaint, Defendants contend that Defendant "Winn

investigated the alleged acts of 'unwanted behavior' and addressed Plaintiff's concerns with

Nightingale." Id. at ¶ 21. Defendants assert that Defendant Nightingale acknowledged that the

alleged physical contact could have unknowingly occurred while he instructed Plaintiff but that he

did not recall touching Plaintiff except for two occasions. See id. Plaintiff states that she cannot

confirm nor deny these assertions because she was not present for the conversation. See id.

According to Defendants, Defendant Nightingale admitted to Defendant Winn that he

tapped Plaintiff's elbow during a January 2019 meeting to get her attention and patted her on the

upper back after he shared news of a colleague's cancer diagnosis in October of 2018. See id. at ¶

22. Defendants state that "Nightingale confirmed Plaintiff's report that none of these physical

interactions were of a sexual nature or motivated by any sexual desire." Id. Plaintiff denies these

assertions and contends that "Nightingale was joking and laughing with the Chief from

Baldwinsville while he continuously was tapping Plaintiff's arm" and that she told Defendant

Nightingale to stop and move away from him. Id. Plaintiff also states that "Nightingale was

rubbing [her] back, not just patting her on her upper back." Id. Plaintiff denies that Defendant

Nightingale's behavior was not motivated by sex because he never touched male officers in the

same way. See id.

Regarding the remainder of Plaintiffs allegations of unwanted behavior, Defendant

Nightingale asserts that any other physical contact with Plaintiff was not done "knowingly,

intentionally, or purposefully" on his part. Id. at ¶ 23; Dkt. No. 92-12 at ¶ 5. Plaintiff argues that

the repeated touching could "not be fairly characterized as casual or unintentional." Dkt. No. 109-

22 at ¶ 23. Defendants contend that Defendant Winn told Defendant Nightingale that regardless

of the nature of the touching, it must stop, there was to be no retaliation against Plaintiff, and he

was to have no physical contact with her, even during trainings. See id. at ¶ 24. Plaintiff could

not confirm nor deny these assertions because she was not present for the conversation. See id.

After the conversation with Defendant Nightingale, Defendants state that Defendant Winn

spoke with Plaintiff and informed her that Defendant Nightingale was directed to no longer have

physical contact with her. See id. at ¶ 25. Defendants attest that Defendant Winn told Plaintiff

that she was to report to him or a supervisor if any unwanted contact occurred or if she was

retaliated against. See id. Plaintiff denies these contentions and asserts that in 2019, Defendant

Winn only "told Plaintiff she no longer had to deal with Nightingale and she was to report to Lt.

Burlingame." Id. Plaintiff agrees that following Defendant Winn's discussion with Defendant

Nightingale, all of the unwanted conduct ceased. See id. at ¶ 26.

Plaintiff and Defendants concur that Plaintiff did not suffer retaliation from Defendant

Nightingale. See id. at ¶ 27. However, Plaintiff asserts that she was retaliated against by

Defendants Winn, Coogan, and the Town through their refusal to "investigate, interview or

consult with any witnesses [she] identified," by suggesting that Defendant Nightingale did not act

intentionally, and by refusing to discipline Defendant Nightingale. Id.

Defendants contend that Plaintiff continued to work for the Town, without further

incident, until her "voluntary" resignation on August 7, 2019, to take a job with the City of

Syracuse Police Department. Id. at ¶ 28. Plaintiff disputes that her resignation was voluntary and

instead asserts that her resignation was to "protect her health." Id. Defendants aver that Plaintiff

"stated that she was leaving to pursue opportunities at [a] much larger police department." Id. at ¶

29. Plaintiff denies that she ever said this. See id. In a resignation letter, which Defendants

assert was "unsolicited," Plaintiff wrote as follows:

I would like to sincerely convey my appreciation to you and this

department as I have had tremendous experiences and opportunity.

I am extremely grateful for the trust and responsibility that you

placed on me as it assisted me in growing as an officer and a

person. Thank you for all of your support and assistance in this law

enforcement journey.

Id. at ¶ 30; see also Dkt. No. 92-6. Plaintiff disputes that the letter was unsolicited because she

"was told she had to submit a letter." Dkt. No. 109-22 at ¶ 30.

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

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).

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

N.Y., 332 F.3d 139, 143 n.5 (2d Cir. 2003) (failing to verify the assertions made in summary

judgment motion with citations to the record "would derogate the truth-finding functions of the

judicial process by substituting convenience for facts").

The moving party bears the initial burden of establishing that there is no genuine issue of

material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect

to any issue on which the moving party does not bear the burden of proof, it may meet its burden

on summary judgment by showing that there is an absence of evidence to support the nonmoving

party's case. See id. at 325. Once the movant meets this initial burden, the nonmoving party must

demonstrate that there is a genuine unresolved issue for trial. See FED. R. CIV. P. 56(e). A

genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a

verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

B. Gender Discrimination

Plaintiff raises equal protection claims against Defendants Nightingale and the Town

under § 1983 alleging discrimination and retaliation based on her gender. See Dkt. No. 96 at ¶¶

42-45. "Section 1983 provides a federal cause of action against any person who, acting under

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). "[Section] 1983 and the Equal Protection Clause protect public

employees from various forms of discrimination, including hostile work environment and

disparate treatment, on the basis of gender." Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.

2006).

Plaintiff also brings claims under the NYSHRL against all Defendants, alleging she

suffered discrimination and retaliation because of her gender. See Dkt. No. 96 at ¶¶ 50-52. The

NYSHRL provides that "[i]t shall be an unlawful discriminatory practice . . . [f]or an employer or

licensing agency, because of an individual's . . . sex, . . . to discriminate against such individual in

compensation or in terms, conditions or privileges of employment." N.Y. EXEC. LAW § 296(a).

Section 1983 and NYSHRL discrimination claims are evaluated under the same standards

as Title VII claim.4 See Chick v. Cnty. of Suffolk, 546 Fed. Appx. 58, 59 (2d Cir. 2013) ("Section

1983 employment discrimination claims asserted as equal protection violations are evaluated

under the same standards as Title VII claims"); Salamon v. Our Lady of Victory Hosp., 514 F.3d

217, 226 n.9 (2d Cir. 2008), as amended (Apr. 22, 2008) ("We typically treat Title VII and

NYHRL discrimination claims as analytically identical, applying the same standard of proof to

both claims"). Because the claims are subject to the same standards, § 1983 and NYSHRL

discrimination claims are analyzed under the burden-shifting framework set forth for Title VII

claims in McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Camarda v.

Selover, 673 Fed. Appx. 26, 28 (2d Cir. 2006). "Under this framework, the 'plaintiff must first

establish a prima facie case by demonstrating that: (1) she is a member of a protected class; (2)

her job performance was satisfactory; (3) she suffered adverse employment action; and (4) the

action occurred under conditions giving rise to an inference of discrimination.'" Stoddard v.

4 Title VII "makes it unlawful for an employer to discriminate against any individual with respect

to the 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).

Eastman Kodak Company, 309 Fed. Appx. 475, 478 (2d Cir. 2009) (quoting Demoret v. Zegarelli,

451 F.3d 140, 151 (2d Cir. 2006)). If the plaintiff establishes a prima facie case, "the burden

shifts to the defendant to articulate 'some legitimate, nondiscriminatory reason' for its action."

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (quoting McDonnel

Douglas, 411 U.S. at 802)). "The final and ultimate burden is on the plaintiff to establish that the

defendant's reason is in fact pretext for unlawful discrimination." Abrams v. Dept. of Public

Safety, 764 F.3d 244, 251 (2d Cir. 2014).

Although § 1983 and NYSHRL claims track the burden shifting framework applied to

Title VII claims, "a plaintiff advancing a claim pursuant to § 1983 must plausibly allege that 'the

alleged deprivation was committed by a person acting under color of state law.'" Naumovski v.

Norris, 934 F.3d 200, 212 (2d Cir. 2019) (quotation omitted). Also, unlike Title VII claims,

which may only be brought against an employing entity, "a § 1983 claim 'can be brought against

an[y] individual' responsible for the discrimination." Id. While a defendant may be liable under

Title VII for "discriminatory conduct that can be properly attributed to the employer through

agency principles, § 1983 does not permit such vicarious liability." Id. An individual defendant

must have "personally violated a plaintiff's constitutional rights" to be held liable under § 1983.

Id. The same is true for claims brought under the NYSHRL. See Boger v. New York State Office

of Parks, Recreation & Historic Preservation, No. 5:17-CV-00289, 2019 WL 2766897, *11

(N.D.N.Y. July 2, 2019) ("[I]ndividuals . . . may be liable under the NYSHRL if they were

personally involved in the conduct giving rise to the claim"). Additionally, "a claim for

employment discrimination under § 1983 rather than Title VII must establish that the defendant's

discriminatory intent was a 'but-for' cause of the adverse employment action or the hostile

environment. It is insufficient to establish simply that invidious discrimination was 'a motivating

factor' of the offending conduct." Naumovski, 934 F.3d at 213. As such, for a § 1983 claim to

survive a motion for summary judgment, when viewed in the light most favorable to the plaintiff,

the evidence must be such that "a reasonable jury could find that the adverse employment action

would not have occurred 'but-for' sex discrimination." Id. at 214.

"Accordingly, at the third step of the McDonnell Douglas analysis, a plaintiff asserting a §

1983 claim bears a higher burden in establishing that the employer's alternative,

nondiscriminatory reason for the adverse employment action is 'pretextual.'" Id. "[U]nder §

1983, a plaintiff must establish that the employer's stated reason would not, alone, constitute a

sufficient basis for pursuing an adverse action." Id. at 215. A plaintiff "must establish that the

employer's stated non-discriminatory reason is either false or inadequate to support the adverse

employment action." Id.

1. Hostile Work Environment

a. Severe and Pervasive Conduct

Defendants argue that Plaintiff's § 1983 and NYSHRL hostile work environment claims

fail as a matter of law because the conduct complained of was not severe or pervasive enough to

alter Plaintiff's employment. See Dkt. No. 105 at 13-18. Plaintiff contends that Defendant

Nightingale's conduct was "severe in nature" and "pervasively impacted" her working conditions

and therefore her hostile work environment claims must be allowed to proceed to trial. Dkt. No.

110 at 13.

"The standard for showing a hostile work environment under Title VII, [], Section 1983,

and the New York State Human Rights Law is essentially the same." Smith v. Town of

Hempstead Dept. of Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451 (E.D.N.Y. 2011)

(citing Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 609 (2d Cir. 2006); Patterson v.

County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004)). As such, the Court will

simultaneously analyze Plaintiff's § 1983 and NYSHRL hostile work environment claims. See

Williams v. New York City Housing Authority, 61 F.4th 55, 70 (2d Cir. 2023) (analyzing state and

federal hostile work environment claims under the same standards).

"A hostile work environment exists '[w]hen 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.'" Torres v. Pisano, 116 F.3d 625, 630-31 (2d Cir. 1997)

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). "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." Dermot v. Zegarelli, 451 F.3d 140 (2d Cir. 2006) (citing Hayut

v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003)). "Generally, 'incidents must be more

than episodic; they must be sufficiently continuous and concerted in order to be deemed

pervasive.'" Id. at 149 (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)). However,

"harassing conduct does not need to be both severe and pervasive. One instance of conduct that is

sufficiently severe may be enough." Jackson v. County of Racine, 474 F.3d 493, 499 (7th Cir.

2007); see also Alfano, 294 F.3d at 374 ("In short, a plaintiff alleging a hostile work environment

'must demonstrate either that a single incident was extraordinarily severe, or that a series of

incidents were "sufficiently continuous and concerted" to have altered the conditions of her

working environment'") (quotation omitted).

"[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all

the circumstances." Harris, 510 U.S. at 23. Circumstances "may include the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee's work

performance." Id. Evidence of psychological harm may also be considered in this analysis but is

not required for there to be a finding that a work environment is hostile. See id. at 22-23; see also

Banks v. General Motors, LLC, 81 F.4th 242, 267-68 (2d Cir. 2023). Finally, "it is 'axiomatic'

that in order to establish a sex-based hostile work environment under [§ 1983], a plaintiff must

demonstrate that the conduct occurred because of her sex." Alfano, 294 F.3d at 374 (citing Brown

v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)); see also Gallagher v. Unified Ct. Sys., No. 3:18-

CV-01476, 2024 WL 985097, *16 (N.D.N.Y. Mar. 7, 2024).

Plaintiff presents evidence that suggests Defendant Nightingale's physical touching was

motivated by her gender. The affirmations of several male officers support the contention that

Defendant Nightingale subjected Plaintiff to touching that the male officers were not subjected to.

See Dkt. No. 109-15 at ¶¶ 3-7; Dkt. No. 109-16 at ¶¶ 2-5; Dkt. No. 109-17 at ¶¶ 2-5; Dkt. No.

109-18 at ¶¶ 4-7. In Matthew Cobb's affirmation, he asserted that "[i]t was well known that

Defendant Nightingale often touched or tried to touch [Plaintiff] in unwelcome ways that he did

not touch others." Dkt. No. 109-15 at ¶ 3. Cobb also stated that he "never saw [Defendant

Nightingale] do any of this conduct toward male employees." Id. He described the contact as

Nightingale "put[ting] his hands on her shoulders or otherwise encroach[ing] on her personal

space." Id. Cobb stated that he and Plaintiff "engaged in 'vent sessions.' She would experience

crying spells, sometimes several times per week, lasting up to one hour." Id. at ¶ 9.

In Daniel Dougher's affirmation, he stated he "observed Nightingale's unwanted touching

of Plaintiff on more than one occasion. His attitude towards her was different than towards men

in that he tried to be physically controlling." Dkt. No. 109-16 at ¶ 5. Dougher also corroborated

Plaintiff's testimony that Defendant Nightingale rubbed, not patted her back, when he shared news

of a colleague's cancer diagnosis. See id.; Dkt. No. 109-22 at ¶ 22.

Burlingame attested that "[p]rior to 2017, I did observe Nightingale touching Plaintiff in a

way that he did not touch male officers at the firing range. . . . I have never had him touch me in

that way nor seen him touch other men in that fashion." Dkt. No. 109-17 at ¶ 5. Burlingame

declared that he "heard [Nightingale] say sexist and misogynistic statements such as 'women

shouldn't be cops.' He always presented himself in the fashion that law enforcement is a 'man's

job.'" Id. at ¶ 3. Burlingame described Nightingale's touching of Plaintiff as "touch[ing] the small

of her back." Id. at ¶ 5. Burlingame asserted that "[t]he atmosphere and culture in the department

under Nightingale and Winn was one of fear and retaliation. Officers who dared to complain

were given least desired shifts or subject to discipline." Id. at ¶ 14.

Finally, Matt Ryan stated in his affirmation that he "observed Defendant Nightingale

repeatedly touch Plaintiff or stand directly over her while she was on the computer or sitting in a

chair." Dkt. No. 109-18 at ¶ 4. Ryan also stated that he "did not overserve [Defendant

Nightingale] treat male officers in the same fashion, nor did I hear of anyone making such

observations of other officers." Id. Ryan described one instance as follows: "Before we had even

begun shooting, he approached her from behind, put his arms around her from behind, held his

body against hers and wrapped his arms around her with his left and right hands on her arms as if

to show her how to hold the firearm. I had never seen that done before." Id. at ¶ 5. Ryan also

observed Nightingale stand over Plaintiff and place his hands on her back or shoulder. See id. at ¶

6. Ryan described the "atmosphere []as such that you had to tolerate Nightingale and Winn - or

you're going to be blackballed. Nightingale was someone who had the full support of the Chief

and in fact was promoted to Captain after Officer Arnold finally made a complaint." Id.

Viewing the evidence in the light most favorable to Plaintiff, this is sufficient evidence

that would allow a reasonable fact finder to determine that Defendant Nightingale's alleged

conduct would not have occurred but-for Plaintiff's gender.

However, Plaintiff's hostile work environment claims fail as a matter of law because there

is insufficient evidence that the alleged incidents were severe or pervasive enough to meet the

objective standard. Plaintiff alleges that Defendant Nightingale's harassing conduct occurred over

the course of her employment and did not cease until Defendant Winn spoke to Defendant

Nightingale about Plaintiff's complaint in February of 2019. See Dkt. No. 109-22 at ¶ 26.

Plaintiff asserts that there were "six instances of sexual harassment by Nightingale" that she

documented between 2017 and 2019 and reported in her 2019 work complaint. Id. at ¶ 17. She

states that there were other instances prior to this time frame that she did not document. See id.

In her affirmation, Plaintiff states as follows:

The incidents of Defendant Nightingale's touching were not isolated

incidents given the sporadic amount of time I had contact with him.

His conduct was frequent and noticeable enough that it became a

running joke amongst my co-workers, with them stating in words or

substance that "he doesn't touch me like that."

Dkt. No. 109-14 at ¶ 9. The contact is described by Plaintiff and her fellow officers as "touching"

or "putting his hands on" Plaintiff's shoulder or back, "rubbing" her back on one occasion,

"bumping" her forearm, and one instance of "putt[ing] his arms around her from behind, h[olding]

his body against hers and wrap[ing] his arms around her with his left and right hands on her arms

as if to show her how to hold the firearm." Dkt. No. 109-18 at ¶ 5; Dkt. No. 109-11 at 235-36,

241-48; Dkt. No. Dkt. No. 109-17 at ¶ 5; Dkt. No. 109-15 at ¶ 3.

Generally, courts have concluded that sporadic or incidental incidents of conduct, like

those alleged by Plaintiff, are insufficient to establish that discriminatory conduct is pervasive.

See Ricard v. Kraft General Foods, No. 92-CV-2256, 1993 WL 385129, *3 (S.D.N.Y. Mar. 16,

1993) aff'd, 17 F.3d 1426 (2d Cir. 1994) (finding that four "sexually-oriented incidents" over a

period of twelve months did not create an actionable hostile work environment); Lucas v. South

Nassau Communities Hosp., 54 F. Supp. 2d 141, 147-49 (E.D.N.Y. 1998) (granting summary

judgment as to the plaintiff's state law hostile work environment claim where, over the course of

twenty-one months, supervisor allegedly brushed against the plaintiff three times, touched the

plaintiff with her hand on three occasions, touched the plaintiff's back or shoulder on five-to-

seven occasions, suggested that the plaintiff wanted to go to bed with her, asked the plaintiff the

color of his underwear on two to three occasions, and said "fuck you" twice); Feingold v. New

York, 366 F.3d 138, 150 (2d Cir. 2004) (finding that, over the course of eight months, routine,

"almost daily," "discriminatory intimidation, ridicule, and insult" because of the plaintiff's religion

was sufficiently pervasive that a reasonable factfinder could conclude that the plaintiff was

subjected to a hostile work environment).

Part of the hostile work environment inquiry concerns whether the conduct is a way in

which coworkers "routinely interact," or whether "it is not conduct that is normal for the

workplace." Redd v. New York Div. of Parole, 678 F.3d 166, 179 (2d Cir. 2012) (quotation

omitted). "'When entering a workplace, reasonable people expect to have their autonomy

circumscribed in a number of ways; but giving up control over who can touch their bod[ies] is

usually not one of them.'" Id. (quoting Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir.

2006)) (concluding that contact could not be categorized as "incidental" when "[t]he first occurred

after Redd had been called into Washington's office; the second occurred when Redd and another

PO were talking in a hallway, and Washington came up to Redd and rubbed up against Redd's

breasts; the third occurred when Washington crossed a room to where Redd was working at a

computer, and reached over and touched Redd's breasts").

Here, the alleged incidents occurred when Defendant Nightingale was instructing on

firearms, in a meeting sitting next to Plaintiff, or showing her something on his phone that was

not of an offensive or sexual nature. "There is neither a threshold magic number of harassing

incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents

below which a plaintiff fails as a matter of law to state a claim." Dash v. Board of Educ. of City

School Dist. of New York, 238 F. Supp. 3d 375, 386 (E.D.N.Y. 2017) (quoting Howley v. Town of

Stanford, 217 F.3d 141, 154 (2d Cir. 2000)). "The objective hostility of a work environment

depends on the totality of the circumstances." Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d

Cir. 2004) (citation omitted); see also Dash, 238 F. Supp. 3d at 391 (denying summary judgment

not based solely on the severity or pervasiveness of alleged conduct, but the totality of the

circumstances). The present record is lacking evidence of pervasive conduct compared to those

cases which have allowed a hostile work environment to proceed to trial or concluded as a matter

of law that conduct was pervasive. See Vito v. Bausch & Lomb Inc., 403 Fed. Appx. 593, 596 (2d

Cir. 2010) (concluding "that the record before us is insufficient to sustain a hostile work

environment claim" where the plaintiff alleged that her coworker "once approached her from

behind as she sat at her workstation on a chair that had a low backrest and no armrests" and

pushed against the back of her chair and touched part of her back and side" and "on at least two

separate occasions [] touched her shoulder").

There is also little in the record to suggest that the conduct was sufficiently severe.

Plaintiff states that there was "offensive touching of her body, including [her] arms, shoulders,

and back." Dkt. No. 110 at 1. Generally, such instances of touching are not found to be

sufficiently severe to sustain a hostile work environment claim. See Parrish v. Sollecito, 249 F.

Supp. 2d 342, 349 (S.D.N.Y. 2003) (finding that isolated incidents of rubbing an arm or shoulder

do not equate to the severity of a supervisor's repeated touching of a subordinates inner thigh over

the course of a year); Redd, 678 F.3d at 177 ("[A] hand on the shoulder, a brief hug, or a peck on

the cheek—would normally be unlikely to create a hostile environment. . . . And even more

intimate or more crude physical acts—a hand on the thigh, a kiss on the lips, a pinch of the

buttocks—may be considered insufficiently abusive to be described as 'severe' when they occur in

isolation") (quoting Patton, 455 F.3d at 816). Plaintiff does not allege offensive contact with any

intimate parts of her body that typically lead courts to more easily conclude that the alleged

conduct was severe. See Redd, 678 F.3d at 17 ("[D]irect contact with an intimate body part

constitutes one of the most severe forms of sexual harassment"); Zaja v. SUNY Upstate Med.

Univ./Upstate Healthcare Ctr., No. 5:20-CV-337, 2022 WL 4465498, *4 (N.D.N.Y. Sept. 26,

2022) (finding female employees' repeated touching of the plaintiff's buttocks, even after the

plaintiff requested that they stop, and placing of breasts on the plaintiff's shoulder to be

sufficiently severe); Raspardo v. Carlone, 770 F.3d 97, 119 (2d Cir. 2014) ("[F]our principal

incidents, including unwanted touching and vulgar comments in front of other officers, when

combined with the 'over ten' additional comments about [plaintiff's] body, all over a period of just

one year, would be amply sufficient to permit a jury to find a sexually hostile work

environment").

Numerous cases have concluded that less overtly sexualized conduct in the workplace,

like that alleged by Plaintiff, and corroborated by her coworkers, is not severe and pervasive.

Compare Roundtree v. Securitas Sec. Servs., Inc., No. 3:10-CV-778, 2012 WL 631848, *7 (D.

Conn. Fed. 27, 2012) ("The Court finds that no reasonable juror could deem this conduct

sufficiently severe and pervasive to materially alter the terms and conditions of Roundtree's

employment. First, the court notes that, while Roundtree characterizes Gibsons' behavior as

'sexual' . . . and Bibb's as 'inappropriate' . . . the physical acts he describes—touching his

shoulders, laying a head on his shoulder—are not overtly sexual"); Beale v. Mount Vernon Police

Dep't, 895 F. Supp. 2d 576, 580, 588 (S.D.N.Y. 2012) ("In May 2006, while Plaintiff was either

answering the phone or attending to a civilian at a service window, Rella crumpled up a piece of

paper and placed it under the shoulder epaulet on Plaintiff's uniform. . . . Rella did not touch

Plaintiff anywhere aside from her shoulder. . . . Plaintiff does not allege that allege that Rella's

action of stuffing a crumpled piece of piece[sic] under her shoulder epaulet was sexual"); Hilt-

Dyson v. City Of Chicago, 282 F.3d 456, 463-64 (7th Cir. 2002) ("In particular, the back rubbing

incidents at issue in this case, although inappropriate behavior in the workplace, do not constitute

by themselves actionable harassment under Title VII . . . On each occasion, the back rubbing

incident was brief and involved no threats, intimidation or humiliation"); with Maher v. Alliance

Mortg. Banking Corp., 650 F. Supp. 2d 249, 264-65 (E.D.N.Y. 2009) ("A jury considering the

totality of the circumstances could reasonably find Agoglia's actions were frequent, humiliating,

and altered the conditions of her employment" where the defendant touched the plaintiff's butt,

shoulder, neck, blew in her ear, indicated grabbing of breasts, and placed a cigar in her blouse);

Johnson v. J. Walter Thompson U.S.A., LLC, 224 F. Supp. 3d 296, 309 (S.D.N.Y. 2016)

("Considering the alleged conduct in context, Johnson has pleaded enough to support a plausible

inference that an objectively hostile work environment existed" where the defendant rubbed

Plaintiff's shoulders, touched her face, and made repeated comments regarding rape).

Although Plaintiff was undoubtedly uncomfortable and Nightingale's conduct was

inappropriate, a reasonable fact finder could not conclude that the conduct was "sufficiently

severe or pervasive to alter the conditions of [Plaintiff's] employment." Torres, 116 F.3d at 631

(quoting Harris, 510 U.S. at 21); see also Capaldo v. Remington Long Island Emps., No. 18-CV-

2746, 2023 WL 2710251, *12 (E.D.N.Y. Mar. 30, 2023) (concluding that the plaintiff "alleges

only 'casual contact that might be expected among friends'" where the defendant laid his head on

the plaintiff's shoulder, wrapped his arms around her, asked her out numerous times, and told her

she looked beautiful) (quotation omitted); Sowash v. Marshalls of MA, Inc., No. 7:19-CV-361,

2021 WL 2115359, *7 (W.D. Va. May 25, 2021), aff'd, No. 21-1656, 2022 WL 2256312 (4th Cir.

June 23, 2022) ("While Hughes touched Sowash's arm a number of times, he did not proposition

her or make any sexual comments to her. . . . [T]he one kiss on the cheek was inappropriate, but

it does not create severe or pervasive sexual harassment") (citations omitted).

Based on the foregoing, Defendants' motion for summary judgment is granted as to

Plaintiff's § 1983 and NYSHRL hostile work environment claims.

b. Town Liability

Defendants argue that Plaintiff's claims against the Town fail as a matter of law because

she cannot demonstrate that Defendant Winn was deliberately indifferent to her complaints. See

Dkt. No. 105 at 25. Plaintiff responds, noting that "[i]t is undisputed that Defendant Winn failed

to follow Town policy when he received Plaintiff's first complaint of harassment by not filing a

formal complaint or conducting an investigation." Dkt. No. 110 at 15. Plaintiff contends that

Defendant Winn was deliberately indifferent because he "was unsupportive of Plaintiff. She

expressed fear of retaliation and contrary to his testimony, he never assured her that she would not

be subjected to such adverse treatment." Id. at 16.

"'To establish liability under Monell, a plaintiff must show that he suffered the denial of a

constitutional right that was caused by an official municipal policy or custom.'" A.S. v. City Sch.

Dist. of Albany, 585 F. Supp. 3d 246, 281 (N.D.N.Y. 2022) (quoting Bellamy v. City of New York,

914 F.3d 727, 756 (2d Cir. 2019)). One route to evidence a municipal policy or custom is through

facts that show "a failure to train or supervise that amounts to 'deliberate indifference' to the rights

of those with whom the municipality's employees interact." Id. (quoting City of Canton v. Harris,

489 U.S. 378, 388 (1989)). "Deliberate indifference may be found both 'when the defendant's

response to known discrimination 'is clearly unreasonable in light of the known circumstances,' . .

. and when remedial action only follows after 'a lengthy and unjustified delay.'" Hayut v. State

Univ. of New York, 352 F.3d 733, 751 (2d Cir. 2003) (quoting Gant v. Wallingford Bd. of Educ.,

195 F.3d 134, 141 (2d Cir. 1999); Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 761

(2d Cir. 1998)) (additional quotation and quotation marks omitted); see also Amnesty Am. v. Town

of W. Hartford, 361 F.3d 113, 128 (2d Cir. 2004) ("[P]laintiffs' evidence must establish only that

a policymaking official had notice of a potentially serious problem of unconstitutional conduct,

such that the need for corrective action or supervision was 'obvious,' . . . and the policymaker's

failure to investigate or rectify the situation evidences deliberate indifference, rather than mere

negligence or bureaucratic inaction") (quotation omitted).

"To prevail on a municipal liability claim, a plaintiff must show 'a direct causal link

between a municipal policy or custom and the alleged constitutional deprivation.'" A.S., 585 F.

Supp. 3d at 281 (quoting Outlaw v. City of Hartford, 884 F.3d 351, 373 (2d Cir. 2018)). Where a

plaintiff "fail[s] to establish individual liability on [] claims of discrimination, retaliation, hostile

work environment, and deprivation of due process, [a] claim of liability against the City for these

purported violations fails as a matter of law." Wright v. City of Syracuse, 611 Fed. Appx. 8, 12

(2d Cir. 2015) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).

First, because the Court finds dismissal is required as to Plaintiff's hostile work

environment claims, dismissal is likewise required as to her municipal claims based on a

deliberate indifference theory to those complaints.

Second, even if dismissal was not required for that reason, Plaintiff has not produced

evidence that Defendant Winn's actions meet the "stringent standard of fault, requiring proof that

a municipal actor disregarded a known or obvious consequence of his action." Bd. of Cnty.

Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997). "Specifically, '[i]n the context

of sexual harassment, inaction may be actionable, and failure to promptly and properly respond to

complaints may expose a supervisor or employer to liability under anti-discrimination laws.'"

Cowan v. City of Mount Vernon, 95 F. Supp. 3d 624, 642 (S.D.N.Y. 2015) (quoting Burhans v.

Lopez, 24 F.Supp.3d 375, 382 (S.D.N.Y. 2014)). Plaintiff cited to Cowan to support her

argument that "[s]ummary judgment should be denied where there is evidence of municipal

liability based on failure to investigate complaints of sexual harassment." Dkt. No. 110 at 15. In

Cowan, the defendant supervisor "did not investigate her claims, but rather informed Plaintiff that

she should not complain of the harassment." Cowan, 95 F. Supp. 3d at 642. "Indeed, Plaintiff

testified that [her supervisor] requested that she re-write her formal complaint in March 2011 to

omit the allegations of sexual harassment." Id. Plaintiff's federal complaint alleged that her

coworker "sexually harassed Plaintiff, culminating in a vicious assault," and "on a daily basis,

[he] made comments about Plaintiff's body, her appearance, and his desire to have sexual

relations with her." Id. at 632. Plaintiff's coworker "also physically touched Plaintiff in a sexual

manner, including feeling her back, pinching her buttocks, slapping and/or squeezing her

buttocks, and grabbing her chest." Id. Plaintiff initially included the sexual harassment in her

workplace complaint, but her supervisor told "her that she 'did not have enough' to sustain a

sexual harassment complaint and that she should produce another complaint that did not contain

the sexual harassment content." Id. at 633 (quotation omitted). Plaintiff then sent her supervisor

an "email, which stated that it was Plaintiff's 'initial complaint of hostility in the workplace.'" Id.

(quotation omitted).

Cowan is distinguishable from the case now before the Court. Here, Plaintiff admits in

response to Defendants' statement of material facts that "on January 24, 2019, as part of Plaintiff's

annual performance review, she reported two additional incidents involving Captain Nightingale.

. . . Chief Winn assured Plaintiff that she would be protected against retaliation, he reminded her

to report any further concerns of unwanted conduct." Dkt. No. 109-22 at ¶ 18. She agrees that

when she first complained of Defendant Nightingale's conduct, Defendant Winn "told Plaintiff

that he would place a 'summary' of her complaint in a sealed envelope in her personnel file." Id.

at ¶ 16. Although Defendant Winn later told Plaintiff's to cross out the word "Sexual" on her

formal complaint, she still narratively explained the instances of unwanted touching and she does

not present any evidence that the conduct was sexually motivated. Id. at ¶¶ 19-20. Plaintiff

wanted the conduct to stop, and she agrees that Defendant Winn spoke to Defendant Nightingale

and the conduct ceased. See Dkt. No. 109-22 at ¶¶ 21-26. This is not the type of conduct that

meets the "stringent standard of fault." Hulett v. City of Syracuse, 253 F. Supp. 3d 462, 500

(N.D.N.Y. 2017) (quoting Brown v. City of N.Y., No. 13-CV-6912, 2017 WL 1390678 *13

(S.D.N.Y. Apr. 17, 2017)) (additional quotation omitted). "Evidence that the [municipality] took

steps to rectify the problem, but failed to do so, cannot insulate it from liability if the

[municipality's] steps 'are proven so meaningless or blatantly inadequate to the task . . .

notwithstanding [its] nominal supervisory efforts.'" Stevens v. City of Bridgeport, 607 F. Supp. 2d

342, 356 (D. Conn. 2009) (quoting Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007))

(denying summary judgment where "the Department engaged in minimal efforts to stop" the

harassment where the supervisor told one plaintiff to "dress down" and told the harasser that

another plaintiff "was 'nutso' and that he should just 'stay away from her,' [the supervisor] may

even have exacerbated the harassment by expressing to [the harasser] that the Department did not

take it seriously"). Here, Defendant Winn wrote a confidential summary of Plaintiff's complaint,

instructed her to file a formal complaint, spoke with Defendant Nightingale, and the conduct

ceased. Plaintiff has not established that this conduct amounts to deliberate indifference.

Plaintiff also presents no case law to support her contention that the Town can be liable

for Defendant Winn's conduct because he "was unsupportive of Plaintiff. She expressed fear of

retaliation and contrary to his testimony, he never assured her that she would not be subjected to

such adverse treatment." Dkt. No. 110 at 16. Plaintiff argues that "[t]he law should not allow an

employer to escape liability when a victim reports harassment but expresses fear of pursuing a

complaint and chooses not to proceed because the employer is unsupportive and refuses to even

assure the employee that they will not be retaliated against." Id. However, she provides no

authority which concludes that being "unsupportive" amounts to deliberate indifference. Id.

Based on the foregoing, summary judgment is warranted as to Plaintiff's claims against the

Town.

2. Disparate Treatment

Plaintiff claims that she was subjected to disparate treatment based on her gender because

she was treated less favorably than male police officers. See Dkt. No. 110 at 17. Specifically,

Plaintiff argues that she was denied training, instruction, and overtime opportunities that were

afforded to less qualified male officers. See id.; see also Dkt. No. 96 at ¶ 16.

As with hostile work environment claims, "[t]he standards for deciding the state law

claims for disparate treatment are also the same as the standards for § 1983[.]" Demoret, 451

F.3d at 153. As such, Plaintiff's state and federal disparate treatment claims will be considered

together. See id. (dismissing state law disparate treatment claims because the district court's

dismissal of federal disparate treatment claims was proper).

"Courts analyze claims of disparate treatment claims under the familiar burden shifting

framework of McDonnell Douglas[.]" Id. at 151. Accordingly, a plaintiff must first establish a

prima facie case of discrimination showing "that: (1) she is a member of a protected class; (2) her

job performance was satisfactory; (3) she suffered adverse employment action; and (4) the action

occurred under conditions giving rise to an inference of discrimination." Id. If such a showing is

made, "the burden shifts to the defendant employer to provide a legitimate non-discriminatory

reason for the action. If the defendant makes such a showing, the burden shifts back to the

plaintiff to prove discrimination, for example, by showing that the employer's proffered reason is

pretextual." Id. "A showing of disparate treatment—that is, a showing that an employer treated

plaintiff less favorably than a similarly situated employee outside his protected group—is a

recognized method of raising an inference of discrimination for the purposes of making out a

prima facie case." Hakeem v. Parkinson, 523 Fed. Appx. 19, 20-21 (2d Cir. 2013). "To establish

an inference of discriminatory intent through disparate treatment, a plaintiff must allege that 'she

was similarly situated in all material respects to the individuals with whom she seeks to compare

herself." Kunik v. New York City Dept. of Education, 436 F. Supp. 3d 684, 697 (S.D.N.Y. 2020)

(quoting Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)). "An employee is similarly

situated to co-employees if they were (1) 'subject to the same performance evaluation and

discipline standards' and (2) 'engaged in comparable conduct.'" Ruiz v. Rockland, 609 F.3d 486,

494 (2d Cir. 2010) (quotation omitted)

Defendants do not dispute that Plaintiff has established the first two elements of a prima

facie case for gender discrimination—that she is a member of a protected class and her job

performance was satisfactory. See generally Dkt. Nos. 105, 113-3. With regard to the third and

fourth elements of her prima facie case, Defendants argue that Plaintiff has failed to establish that

she suffered any adverse employment actions or that there is an inference of discrimination

underlying the alleged actions. See Dkt. No. 105 at 6-13.

"A denial of training is an adverse employment action 'in circumstances where an

employer denies necessary job training to an employee and the terms and conditions of his

employment are thereby harmed.'" Ocasio v. Mohawk Valley Community College, No. 6:20-CV-

1355, 2021 WL 4477241, *8 (N.D.N.Y. Sept. 30, 2021) (quoting Carpenter v. City of Mount

Vernon, 198 F. Supp. 3d 272, 280 (S.D.N.Y. 2016)). A denial of training opportunities must have

"caused [a plaintiff's] opportunities for career growth or compensation to be affected[,]" to

constitute harm to the terms and conditions of a plaintiff's employment. Id. (quoting Carpenter,

198 F. Supp. 3d at 280). "An adverse employment action may or may not entail economic loss,

but there must be a link between the discrimination and some 'tangible job benefits' such as

'compensation, terms, conditions or privileges' of employment." Alfano, 294 F.3d at 373 (quoting

Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir. 1994)).

Plaintiff states that her "training assignment" with the Department "was of a nominal

nature" and was only offered after she complained about Defendant Nightingale's conduct. Dkt.

No. 110 at 19. She notes that her instructing assignments were with "civilian staff." Id. Plaintiff

offers no evidence that any of the alleged denials of training or instruction opportunities had an

effect on her compensation, opportunities for career growth, or some "tangible job benefit[.]"

Alfano, 294 F.3d at 373; Dkt. No. 110 at 19.

In her second amended complaint, Plaintiff alleges that she was subject to disparate

treatment because Defendant Nightingale denied her overtime opportunities. See Dkt. No. 96 at ¶

16. Plaintiff offers no evidence in support of this contention, stating only that "Nightingale

subjected Plaintiff to disparate treatment by denying overtime." Id. Defendants assert that it is

"undisputed that Captain Nightingale was not responsible for the assignment of Plaintiff's

overtime[.]" Dkt. No. 105 at 19. Plaintiff provides no evidence that Defendant Nightingale was

responsible for the approval or denial of her overtime opportunities. See Dkt. No. 96. Defendants

argue that Plaintiff "cannot demonstrate that Captain Nightingale denied her overtime

opportunities, let alone that any such opportunities were denied because of her sex or gender."

Dkt. No. 105 at 19. Plaintiff does not address Defendants' argument in her response to

Defendants' motion for summary judgment. See Dkt. No. 110. For these reasons, Plaintiff has

failed to support her disparate treatment claims based on allegations that that she was denied

overtime opportunities.

Further, Plaintiff offers little evidence as to how male officers within the police force were

situated relative to her. See Dkt. No. 96 at ¶¶ 16, 43, 47. Plaintiff provides personal observations

that male officers were invited and encouraged to attend trainings but does not produce sufficient

evidence as to those officers' position within the police force relative to Plaintiff. See Dkt. No.

109-22 at ¶ 10. Burlingame, a former Lieutenant under the supervision of Defendant Nightingale,

does give some support to Plaintiff's contentions in his affirmation. See Dkt. No. 109-17 at ¶¶ 6,

7, 10. Burlingame stated that "Nightingale would often send his friends to more desirable

training." Id. at ¶ 6. Burlingame also indicated that he "went to 'Street Survival School' in or

about 2014 with several other officers" and that "Plaintiff requested this training at least three

times and was ignored." Id. at ¶ 7. However, again, there is no evidence that this impacted

Plaintiff's career growth or compensation.

Plaintiff asserts that she was treated differently than "less-qualified male officers." Dkt.

No. 96 at ¶ 16. She does not explain how anyone was "less qualified." Id. Plaintiff was a police

officer. Cobb was as well. See Dkt. No. 109-15 at ¶ 1. Dougher does not identify his rank, but

states only that he is retired. See Dkt. No. 109-16 at ¶ 1. Burlingame was a lieutenant when he

retired. See Dkt. No. 109-17 at ¶ 1. Ryan was a police officer. See Dkt. No. 109-18 at ¶ 2.

Plaintiff also does not identify the training and instructional opportunities that specific employees,

who were "less qualified," were given that she was not.

Plaintiff argues "[i]t is also not necessary that she identify an employee more favorably

treated and who was similarly situated" because "'[f]or it may be the case that a co-worker or

supervisor treats both men and women badly, but women worse.'" Dkt. No. 110 at 18 (quoting

Brown v. Henderson, 257 F.3d 246, 253 (2d Cir. 2001)). In Brown, the Second Circuit's

discussion about discrimination claims did include commentary that "discrimination against one

employee cannot be cured, or disproven, solely by favorable, or equitable, treatment of other

employees of the same race or sex." Brown, 257 F.3d at 252. However, that discussion was in

the context of analyzing alleged hostile work environment claims. See id. In the context of a

disparate treatment claim, the Second Circuit has explained that "discriminatory intent can be

shown by either direct evidence of discriminatory animus or circumstantial evidence of such

animus, including by showing disparate treatment among similarly situated employees." Radwan

v. Manuel, 55 F.4th 101, 132 (2d Cir. 2022) (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111,

117 (2d Cir. 2000)). "Direct evidence of discriminatory animus includes employer policies,

practices, or decisions that expressly rely upon a protected characteristic." Simons v. Yale Univ.,

No. 3:19-CV-1547, 2024 WL 182208, *8 (D. Conn. Jan. 17, 2024) (citing Young v. United Parcel

Serv., Inc., 575 U.S. 206, 213 (2015)).

"[T]he standard for comparing conduct requires a reasonably close resemblance of the

facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases

are identical. In other words, the comparator must be similarly situated to the plaintiff 'in all

material respects.'" Radwan, 55 F.4th at 132 (quoting Ruiz v. Cnty. of Rockland, 609 F.3d 486,

494 (2d Cir. 2010)) (additional quotation marks omitted). Plaintiff's broad assertion that she was

treated less favorably than male officers is not sufficient to identify similarly situated comparators

who were afforded opportunities that she was denied. See Watson v. Richmond Univ. Med. Ctr.,

408 F. Supp. 3d 249, 264 (E.D.N.Y. 2019) (finding that the plaintiff's vague reference to groups

of potential comparators was not adequate to permit the court to determine whether any potential

comparators were similarly situated to the plaintiff).

Plaintiff admits that she "is unfamiliar with other Officers' training records and lacks

knowledge of anyone who received more training opportunities than she did." Dkt. No. 109-22 at

¶ 8. However, she argues that she should not be faulted for failing to produce evidence of male

officers' training and instruction opportunities because Magistrate Judge Miroslav Lovric denied

Plaintiff's motion to compel production of other employees' training records. See Dkt. No. 110 at

18; see also Dkt. No. 86. Plaintiff states that "[t]he Court should not permit Defendants to now

fault Plaintiff for not producing the information they themselves asserted was irrelevant and

deprived her access to." Dkt. No. 110 at 18. Plaintiff did not appeal Magistrate Judge Lovric's

denial of her motion to compel. Plaintiff also did not request the records when the Court

reopened discovery following the Fourth Department's decision. See Text Minute Entry

01/11/2024.

Finally, Plaintiff's contention that she was not invited to "Street Survival" training

"because they would have to get two separate hotel rooms because she is female and could not

share a room," is evidence of a decision being expressly based on gender. Dkt. No. 109-22 at ¶ 4.

However, Plaintiff has not established that her inability to attend "Street Survival" training

negatively impacted her salary, career growth, or other work opportunities. Because Plaintiff has

not demonstrated that she suffered an adverse employment action nor identified sufficiently

similar comparators, the Court grants Defendants' motion for summary judgment as to Plaintiff's §

1983 and NYSHRL disparate treatment claims.

3. Constructive Discharge

In Plaintiff's second amended complaint she alleges that she "was forced to resign from

Camillus PD on August 8, 2019 to escape this hostility and protect her health." Dkt. No. 96 at ¶

23. In Defendants' motion for summary judgment, they argue Plaintiff's resignation was

voluntary and that because she is unable to demonstrate that she was subject to a hostile work

environment, she cannot demonstrate a constructive discharge claim. See Dkt. No. 105 at 32.

Defendants contend in their reply that Plaintiff has abandoned her constructive discharge claim

because she "fails to address Defendants' argument that she was not constructively discharged" in

her response to Defendants' motion for summary judgment. Dkt. No. 113-3 at 5.

As Defendants note, a claim may be considered abandoned in the event a counseled party

submits a partial response to a dispositive motion. See Jackson v. Fed. Exp., 766 F.3d 189, 197-

98 (2d Cir. 2014); see also Dkt. No. 113-3 at 5. Plaintiff did not state the words "constructive

discharge" in her response to Defendants' motion. See Dkt. No. 110. However, Plaintiff does

refer to her inability to work for the Town because "[t]he conduct at issue here was physically

humiliating and unreasonably interfered with Plaintiff's work to the point that she could no longer

work at Camillus," and, as a result, she "experienced extreme stress and resigned from the

Camillus police department." Id. at 11-12. Based on these assertions, the Court will examine

Plaintiff's constructive discharge claims to determine whether summary judgment is warranted.

"A 'constructive discharge' occurs when an employer 'deliberately makes an employee's

working conditions so intolerable that the employee is forced into an involuntary resignation.'"

Hockeson v. New York State Office of General Services, 188 F. Supp. 2d 215, 220 (S.D.N.Y.

2002) (quoting Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)). Constructive

discharge claims "aris[e] out of particularly pronounced hostile work environments." Pryor v.

Jaffe & Asher, 992 F. Supp. 2d 252, 257 (S.D.N.Y. 2014). "Constructive discharge claims are

often premised on the same type of non-discrete conduct underlying a hostile work environment

claim, although the standard for constructive discharge is higher." Bader v. Special Metals Corp.,

985 F. Supp. 2d 291, 309 (N.D.N.Y. 2013) (citing Mandel v. Champion Int'l Corp., 361 F. Supp.

2d 320, 327 (S.D.N.Y. 2005)). Courts in the Second Circuit have concluded that where a plaintiff

fails to sustain a claim for hostile work environment, constructive discharge claims based upon

the existence of the same alleged hostile work environment also fail. See Fincher v. Depository

Trust and Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010); Pryor, 992 F. Supp. 2d at 262. In

the present instance, Plaintiff has failed, as a matter of law, to support her claims of a hostile work

environment and therefore summary judgment is also warranted as to her constructive discharge

claims. See Pennsylvania State Police v. Suders, 542 U.S. 129, 149 (2004) ("Creation of a hostile

work environment is a necessary predicate to a hostile-environment constructive discharge case");

see also Brown v. Montefiore Med. Ctr., No. 19-CV-11474, 2022 WL 392313, *5 (S.D.N.Y. Feb.

09, 2022); Brooks v. Doe Fund, Inc., No. 17-CV-3626, 2020 WL 13659079, *14 n.21 (E.D.N.Y.

Mar. 31, 2020).

C. Retaliation

Retaliation claims, like discrimination claims, brought under § 1983 and the NYSHRL are

subject to the burden-shifting McDonnel Douglas framework. See Kwan v. Andalex Group LLC,

737 F.3d 834, 843 (2d Cir. 2013). As such, a plaintiff must first establish a prima facie case of

retaliation. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). For a plaintiff to establish a

prima facie case of retaliation she must show that "(1) she engaged in protected activity; (2) the

employer was aware of that activity; (3) the employee suffered a materially adverse action; and

(4) there was a causal connection between the protected activity and that adverse action." Kelly v.

Howard I. Shapiro & Associates, 716 F.3d 10, 14 (2d Cir. 2013) (quoting Lore v. City of

Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)).

Defendants argue that Plaintiff "disavowed her retaliation claims" during her deposition.

Dkt. No. 105 at 23. During her deposition, Defendants' counsel asked, "Was there any retaliation

after February of 2019?" Dkt. No. 109-11 at 272. Plaintiff responded, "I don't recall any." Id.

Before this question and response, Plaintiff was speaking specifically of Defendant

Nightingale's alleged conduct. See id. at 271. Plaintiff later explained that "the overall work

environment was pretty awful" and that she "started to develop severe anxiety" as a result of

being "forced to continue to work[] with Captain Nightingale and Chief Winn with the knowledge

that no action would [sic] taken to protect me from further adverse treatment." Id. at 27-273. Her

testimony suggests that while she did not recall any retaliation from Defendant Nightingale, she

did feel as though Defendant Winn and the Town's alleged failure to investigate Plaintiff's

complaint was a form of retaliation. This is consistent with Plaintiff's submissions to this Court

where she either directly admits that Defendant Nightingale did not engage in retaliation or does

not address what role he had in any alleged retaliation. See Dkt. No. 109-22 at ¶ 27; Dkt. No 110

at 17. Plaintiff has not presented any evidence that Defendant Nightingale retaliated against her,

and summary judgment is appropriate in this regard.

With respect to Plaintiff's retaliation claims against Defendant Winn and the Town, they

cannot be sustained because Plaintiff does not allege any materially adverse employment actions

stemming from her engagement in a protected activity.5 "In the context of a retaliation claim, a

'materially adverse' employment action is an action that 'might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.'" Starzynski v. Stanley Black &

Decker, No. 21-CV-3040, 2022 WL 17825920, *1 (2d Cir. 2022). Plaintiff asserts that Defendant

Winn and the Town's act of "refusal to take her complaints of sexual harassment seriously"

constitutes a materially adverse employment action. Dkt. No. 110 at 19. She argues that "[t]hey

failed to investigate, interview any witnesses, or provide reassurance to Plaintiff that her

complaints would be addressed." Id. Plaintiff concedes, however, that all unwanted conduct

stopped following Defendant Winn's conversation with Defendant Nightingale. See Dkt. No.

109-22 at ¶¶ 25-26.

Even accepting Plaintiff's assertions as true, "a failure to investigate a protected complaint

is generally not a materially adverse employment action." Graham v. Macy's, Inc., No. 14-CV-

3192, 2016 WL 354897, *8 n.7 (S.D.N.Y. Jan. 28, 2016) (citing Fincher v. Depository Trust &

Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010)); see also Bianchi v. Rochester City Sch. Dist.,

No. 16-CV-6840, 2019 WL 4750424, *10 (W.D.N.Y. Sept. 30, 2019) (finding an inadequate

5 Defendants do not dispute that Plaintiff engaged in a protected activity and that they were aware

of the protected activity. See Dkt. Nos. 105, 113-3.

investigation of a protected complaint not to be an adverse employment action). It is not to say

"that failure to investigate a complaint cannot ever be considered an adverse employment action

for purposes of a retaliation claim. It can be if the failure is in retaliation for some separate,

protected act by the plaintiff." Fincher, 604 F.3d at 722; see also Vasquez v. Yonkers Pub. Sch.

Dist., No. 21-CV-4620, 2024 WL 1349227, *7 (S.D.N.Y. Mar. 29, 2024); Doe v. St. Lawerence

Univ., No. 8:23-CV-00426, 2024 WL 1116454, *17 (N.D.N.Y. Mar. 14, 2024). However,

Plaintiff makes no claim that the alleged failure to investigate her complaint was in retaliation for

any protected activity other than her making the complaint. See Dkt. No. 110 at 19.

Plaintiff states that "[r]e-assignments or change in job duties, including undesirable work

assignments, are cognizable as retaliation." Id. at 21 (citations omitted). The Court agrees with

that proposition. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) ("[T]he

EEOC has consistently found '[r]etaliatory work assignments' to be a classic and 'widely

recognized' example of 'forbidden retaliation'") (quotation omitted). However, Plaintiff does not

present evidence that she was subjected to an undesirable work assignment. The Supreme Court

has explained that "reassignment of job duties is not automatically actionable. Whether a

particular reassignment is materially adverse depends upon the circumstances of the particular

case, and 'should be judged from the perspective of a reasonable person in the plaintiff's position,

considering "all the circumstances."'" Burlington, 548 U.S. at 71 (quoting Oncale v. Sundowner

Offshore Services, Inc., 523 U.S. 75, 81 (1998)). Plaintiff argues that she given training

assignments to instruct "civilian staff on sexual harassment." Dkt. No. 110 at 5, 19. She states

that she "was never given the opportunity to teach any classes in the department" until after she

complained about Defendant Nightingale's conduct. Id. at 5. Plaintiff does not explain why her

training assignments were "material adverse." She does not, for example, contend that certain

trainings "required more qualifications," was "more arduous and dirtier," or “was objectively

considered a better job." Burlington, 548 U.S. at 71. Nor does she assert that she was given less

advantageous opportunities after she complained to Defendant Winn. Instead, Plaintiff actually

alleges that she was given additional instructional and training opportunities after she engaged in

the protected activity. See Dkt. No. 109-22 at 10-12. Without evidence that she was subjected

to worse conditions following her protected activity, summary judgment dismissing Plaintiff's

retaliation claims 1s proper.

IV. CONCLUSION

After carefully reviewing the record in this matter, the parties’ submissions and the

applicable law, and for the reasons stated herein, the Court hereby

ORDERS that Defendants’ motion for summary judgment (Dkt. No. 92) is GRANTED;

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 shall serve a copy of this Memorandum-Decision

and Order on all parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: August 26, 2024 Me ui D “th

Albany, New York Mae A. D’Agostine ar

U.S. District Judge

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