violation; and 2) the City is responsible for the violation. Collins v. Harker Heights, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (U.S. Feb. 25, 1992) (No. 90-1279). The constitutional violations were discussed in Part IIA, supra. The municipality's responsibility for those violations is at issue here.
Although a municipality can be considered a "person" for purposes of § 1983, ( Monell v. N.Y.C. Dept. Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)), its liability is limited to violations caused by an official policy or custom. "[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible . . . ." Id. at 694.
A municipal policy may be inferred from the informal acts or omissions of supervisory municipal officials. "Municipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983), citing Turpin v. Mailet, 619 F.2d 196, 201-02 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S. Ct. 577, 66 L. Ed. 2d 475 (1980). See also Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir. 1986), cert. denied, 480 U.S. 922, 94 L. Ed. 2d 698, 107 S. Ct. 1384 (1987) (a municipality may be subjected to § 1983 liability on the basis of a policy that tolerates unconstitutional acts by its employees). However, a policy or custom may only be inferred if the acts or omissions of a municipality's supervisory officials are serious enough to amount to "deliberate indifference" to the constitutional rights of a plaintiff. Villante v. Dept. of Corrections, 786 F.2d 516, 519 (2d Cir. 1986). A mere lack of responsiveness, failure to supervise employees, or nonfeasance has been held insufficient to establish a causal link between a municipal custom or practice and a constitutional violation. Canton, Ohio v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). Moreover, a policy cannot normally be inferred from a single incident or omission. Turpin, 619 F.2d 196.
1. Quid Pro Quo Claim
The City first argues that it cannot be held responsible for Sedlacek's alleged quid pro quo sexual harassment of Poulsen which occurred before she complained to Chief Graves. Monell explicitly rejects respondeat superior liability for acts or omissions of employees. The City claims that even assuming that Sedlacek purposely discriminated against Poulsen, absent a showing that this discrimination was effected by some official policy or custom, Sedlacek's actions cannot be reasonably attributed to municipal practice or policy ( Carrero, 890 F.2d 569), especially since Poulsen admits that Graves knew nothing about the harassment prior to her complaint. Item 67 at 15-16.
Poulsen does not appear to contest the City's lack of liability for the events prior to the filing of the EEOC complaint which constitute the alleged quid pro quo harassment by Sedlacek. No evidence submitted suggests that the City had a formal or informal policy of encouraging or refusing to prevent sexual harassment prior to Poulsen's complaint. Therefore, the City's motion for summary judgment on its liability under § 1983 for the alleged acts of quid pro quo sexual harassment by Sedlacek is granted.
2. Hostile Environment Claim
Secondly, Chief Graves and the City argue that no hostile environment was created or continued as part of an official policy or custom after Poulsen filed her complaint. Officer Poulsen failed to bring to their attention the alleged sexual harassment for four months. Graves claims that once he was advised of the problem, he conducted a thorough investigation, including extensive interviews and follow-up of additional complaints brought by Poulsen. At the close of the investigation, Graves concluded that there was insufficient evidence to bring disciplinary charges against Lieutenant Sedlacek. Defendants argue that this did not amount to an official policy or custom condoning sexual harassment.
Poulsen counters that she complained to Chief Graves in June of 1989; and while he made an investigation, efforts to deal with the problem were ineffective. She alleges that Graves did little to stop the occurrences, often even failing to acknowledge that her reports had been corroborated. In Poulsen's affidavit, she lists several specific incidents of a harassing, retaliatory nature which occurred after she initially reported the sexual harassment by Sedlacek. While there is a great deal of dispute about the nature and gravity of these incidents, it is undisputed that Poulsen continued to report to Graves that she was being harassed and supplied details and evidence of such harassment. Poulsen's allegations that she continued to suffer at the hands of Lieutenant Sedlacek and others in the Police Department months after filing her charge are supported by the record kept by Chief Graves (Item 77, Ex. B at 715-736), as well as the deposition of Officer Dolan (Item 77, Ex. E), the only other female police officer in the Department at that time.
The Second Circuit Court in Fiacco found defendant City responsible for a Constitutional violation as it "was knowingly and deliberately indifferent to the possibility that its police officers were wont to use excessive force and that this indifference was demonstrated by the failure of the City defendants to exercise reasonable care in investigating claims of police brutality in order to supervise the officers in the proper use of force." 783 F.2d at 326 (1986). Similarly here, Poulsen has presented enough evidence that Chief Graves was well aware of the incidents of sexual harassment and that his failure to do more than investigate and attempt to segregate the alleged harasser from his victim constituted knowing and deliberate indifference to withstand a motion for summary judgment on this issue.
D. Final Policy Maker
Defendants argue further that in order to hold the City liable, Poulsen must show that a final policymaker acting on behalf of the City adopted or acquiesced in a custom of sexual harassment. They contend that Graves does not fit the narrow definition of "final policymaker" set out in Pembaur v. Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986):
Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered . . . [and] only where a deliberate choice to follow a course of action is made from among various alternatives by the official . . . responsible for establishing final policy.
Id. at 481 and 483.
It is undisputed that Chief Graves had the power to make, and did make, policy for the Police Department, albeit pursuant to a union contract and civil service regulations. There is no indication from the record that either the City Council or the Mayor gave any directions about how to handle the investigation of Poulsen's complaint. Graves had the power to discipline Sedlacek or any other officer whom he found to be acting inappropriately. The fact that he ordered Captain Gilman to see that everyone on Poulsen's shift was talked to about sexual harassment shows that he had the ability to make and change policy regarding these issues. Poulsen asserts that Chief Graves chose to ignore or deal superficially with the complaints of the female officers against supervisory officers and has produced enough documentation to survive summary judgment.
E. Qualified Immunity
Graves urges that he is entitled to qualified immunity from individual suit under § 1983 because he was acting in an official capacity in investigating the charges of sexual harassment against Poulsen and did not knowingly violate constitutional rights which were clearly established at the time. Government officials performing discretionary functions "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).
Graves argues that Poulsen must prove that freedom from a hostile work environment was a clearly established constitutional right in order to state a claim under § 1983 against him. A showing that her rights under Title VII were violated is insufficient because a government official only loses his immunity "by violating the clear command of . . . a statute or regulation . . . [which] provides the basis for the cause of action sued upon." Davis v. Scherer, 468 U.S. 183, 194, 82 L. Ed. 2d 139, 104 S. Ct. 3012 n.12 (1984). Graves urges the court to follow Poe v. Haydon, in which the Sixth Circuit held that "the mere fact that [plaintiff's] Title VII rights to be free from 'hostile environment' sexual harassment were clearly established at the time of the challenged conduct is not sufficient to defeat appellants' qualified immunity. [Plaintiff's] claims . . . must rest on alleged violations of the Constitution." 853 F.2d 418, 428-29 (6th Cir. 1988) (citations omitted).
The Second Circuit has outlined three factors necessary to determine whether a particular right was clearly established at the time a defendant acted:
(1) whether the right in question was defined with "reasonable specificity;" (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.