any further confusion. First, it is important to definitively establish the exact nature of plaintiffs' claims. The complaint as written is, as stated above, not a model of clarity. Attempting to ascertain the exact legal theories upon which plaintiffs base their claims is a frustrating, if not Herculean, task. Thus, the County Defendants' definition of the constitutional violation at issue is certainly reasonable. Obviously, however, as drafters of the complaint, plaintiffs are in the best position to inform the court, and the County Defendants, of the "correct" interpretation. If this motion has served no other purpose, it has at least accomplished this goal. Thus, in the future, the court will construe plaintiffs' complaint in accordance with the assertions contained in their memorandum of law. That is, the court will construe their Title VII causes of action as being based upon theories of hostile work environment, quid pro quo sexual harassment, and retaliation. Accordingly, all their factual allegations, including those pertaining to strip searches, will be analyzed against the appropriate legal frameworks for such claims.
Likewise, the court adopts plaintiffs' interpretation of the constitutional violation that serves as the basis for their § 1983 causes of action. In this regard, the court will construe plaintiffs' complaint as charging that the County Defendants violated plaintiffs' right to be treated equally with their male counterparts in the terms, conditions, and privileges of their employment, more specifically to be free from sexual harassment. Accordingly, all their factual allegations, including those pertaining to strip searches, will be analyzed against the appropriate legal framework for such a claim.
Having established a common ground from which the parties can operate, the court deems it appropriate to provide the parties with the opportunity to reevaluate their positions. If, after completing this review, they conclude that any of plaintiffs' causes of action can be disposed of by a motion for summary judgment, the court hereby grants them leave to file such a motion. Accordingly, with respect to plaintiffs' federal causes of action, the court denies the County Defendants' motion for summary judgment, as well as plaintiffs' cross-motion, without prejudice and with leave to renew. In this regard, the court instructs the parties to inform the court in writing within 15 days of the date of this memorandum-decision and order whether they intend to file such motions. If either party so intends, they must file these motions no later than June 1, 199416
C. Claims Against the Individual Defendants
With respect to the claims against the individual defendants, the County Defendants merely state that dismissal of these claims for lack of personal involvement is appropriate. In support of this argument, they submitted affidavits of all the individual defendants except for Lieutenant Van Winkle who is seriously ill. Each of these affidavits refers to specific allegations in the complaint with respect to which the individual defendants contend that they had no involvement. In response, plaintiffs assert that "although each defendant was not involved in these individual acts, each defendant's discriminatory conduct as alleged herein was responsible for creating and/or perpetrating the environment where such individual acts of discrimination and harassment were permitted to flourish. It is this upon which liability of all defendants is predicated." See Plaintiffs' Memorandum of Law at 11 (emphasis in original).
Although the individual defendants, in their affidavits, deny any personal involvement in specific activities, plaintiffs counter these assertions with deposition testimony and interrogatory answers to the contrary. In light of these submissions, the court concludes that plaintiffs have presented sufficient evidence to create a genuine issue of material fact as to the personal involvement of these individuals regarding certain activities which forecloses a grant of summary judgment on this issue. Moreover, the court reaches the same conclusion with respect to plaintiffs' alternative theory that even if the defendants did not personally participate in certain acts of harassment, they were aware of the same and are, therefore, liable to plaintiffs in their capacity as supervisors because they did nothing to stop such actions.
A defendant's liability for a constitutional deprivation under § 1983 may arise in several different ways. As the Second Circuit has recognized:
the defendant may have directly participated in the infraction. A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong. A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue, Lastly, a supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event.
Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991) (quoting Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (citations omitted)); see also Van Pelt v. Finn, No. 92 Civ. 2977, 1993 U.S. Dist. LEXIS 15951, at *19 (S.D.N.Y. Nov. 10, 1993) (same); Garrido v. Coughlin, 716 F. Supp. 98, 100 (S.D.N.Y. 1989) (quoting Duchesne v. Sugarman, 566 F.2d 817, 830 (2d Cir. 1977) ("Supervisory officials cannot be held liable under § 1983 solely for the acts of others; 'there must be some showing of personal responsibility.'")).
Applying this law to the present case, the court concludes that plaintiffs have come forward with sufficient evidence to create an issue of fact with respect to the liability of the Sheriff and his supervisory officers.
With respect to Deputy Truesdell, who is not a supervisor, however, his liability to plaintiffs must rest entirely upon his personal involvement. In his affidavit in support of the County Defendants' motion, Deputy Truesdell denies any involvement in any matters alleged in the complaint except for in his capacity as a union officer involved in filing grievances. See Truesdell Affidavit at P 2. On the other hand, plaintiffs contend that Deputy Truesdell made sexual advances toward Ms. Doolittle, see Doolittle Exhibit B at 167-170 (Deposition Testimony) and that he told Ms. Doolittle that the male officers would not back her in conflicts with the inmates, see id. at Exhibit 5). Thus, to the extent that these incidents are examples of Deputy Truesdell's personal involvement in harassing plaintiffs, plaintiffs have come forward with sufficient evidence to create an issue of fact regarding Deputy Truesdell's personal involvement in such activities. Accordingly, the court denies the County Defendants' motion for summary judgment with respect to the claims against the individual defendants.
D. Broome County's Liability
With respect to the issue of Broome County's liability, the County Defendants assert that under the New York State Constitution, prior to 1990, the County was not responsible for the acts of the Sheriff or his deputies. See County Defendants' Memorandum of Law at 11-12. Alternatively, they contend that the claims against Broome County should be dismissed because the policies and practices complained of are not the policies of Broome County, and, thus, under § 1983, the County is not liable for the acts of its employees. See id. at 13. In response, plaintiffs concede that prior to 1990 the County was not responsible for the acts of the Sheriff or his deputies. Nevertheless, plaintiffs contend that "since the wrongdoing alleged by plaintiffs against all County Defendants is of a continuing nature, . . . Defendant Broome County is responsible for all acts of Defendant Sheriff and his supervisory officers after January 1, 1990." See Plaintiffs' Memorandum of Law at 17-18. Alternatively, plaintiffs assert that Broome County is liable, at least for purposes of their § 1983 causes of action, because the County's nondiscrimination policy "was never publicized or implemented at the Broome County Sheriff's Department, . . . " See id. at 18.
The fact that the County cannot be held liable for the acts of the Sheriff and his deputies prior to 1990 does not mean that the County is not liable to plaintiffs for the alleged injuries caused by the County Defendants' ongoing sexual harassment of plaintiffs. At issue here are two very distinct theories of liability. Under Title VII, an employer can be held liable for the activities of its employees under a theory of respondeat superior. What constitutes "respondeat superior" liability, however, depends upon the particular legal theory upon which the claims are based -- i.e., hostile work environment, quid pro quo sexual harassment, retaliation. On the other hand, pursuant to § 1983, municipal liability cannot rest upon a theory of respondeat superior. Rather, an employee's actions are attributable to the municipal entity only if those actions are in furtherance of the entity's policy or custom.
The County Defendants assert that the County is not liable to plaintiffs because it has a policy of nondiscrimination in employment, has implemented procedures to enforce compliance with this policy, and has a procedure by which employees, such as plaintiffs, may file complaints alleging discrimination. See County Defendants' Memorandum of Law at 13-17. On the other hand, plaintiffs assert that despite the existence of such a policy, the County is liable to them because it does not follow its own procedures and it never informed plaintiffs of any procedure they could follow to lodge their complaints. See Plaintiffs' Memorandum of Law at 18-24.
Beginning with Monell v. Department of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court has established the principles applicable to municipal liability in § 1983 actions. Pursuant to this line of decisions, municipal liability may be imposed under two theories. First, such liability may exist if "[a] plaintiff [can] demonstrate that [the] constitutional harm suffered was the result of a municipal policy or custom." Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992) (citing Monell, 436 U.S. at 690-91, 98 S. Ct. at 2035-36; Pembaur, 475 U.S. at 478-79, 106 S. Ct. at 1297-98; Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991); Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986)). Under this theory, "before the actions of subordinate [municipal] employees can give rise to § 1983 liability, their discriminatory practice must be so manifest as to imply the constructive acquiescence of senior policy-making officials." Sorlucco, 971 F.2d at 871 (citing Praprotnik, 485 U.S. at 130, 108 S. Ct. at 927; Krulik v. Board of Educ. of City of New York, 781 F.2d 15, 23 (2d Cir. 1986)). As the Court noted in City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989), "'it is only when the "execution of the government's policy or custom . . . inflicts the injury" that the municipality may be held liable under § 1983.'" (quoting Springfield v. Kibbe, 480 U.S. 257, 267, 107 S. Ct. 1114, 1119, 94 L. Ed. 2d 293 (1987) (O'Connor, J., dissenting) (quoting in turn Monell, 436 U.S. at 694, 98 S. Ct. at 2037-38)). Therefore, the court's first inquiry must be "whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." Id.
Under the second theory, the one that appears to be applicable here, municipal liability may exist when a valid policy is unconstitutionally applied by municipal employees if those employees were not adequately trained and the constitutional wrong was caused by that failure to train. However, "only where a municipality's failure to train its employees in a relevant respect evidences a 'deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a [municipal] 'policy or custom' that is actionable under § 1983." City of Canton, 489 U.S. at 389, 109 S. Ct. at 1205. Thus, "'municipal liability under § 1983 attaches where -- and only where -- a deliberate choice to follow a course of action is made from among various alternatives' by city policymakers." Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84, 106 S. Ct. 1292, 1300-01, 89 L. Ed. 2d 452 (1986) (plurality)).
To constitute deliberate indifference to the constitutional rights of its citizens, a municipality's failure to train or supervise its employees must meet three requirements.
First, the plaintiff must show that a policymaker knows 'to a moral certainty' that her employees will confront a given situation. Id. Thus, a policymaker does not exhibit deliberate indifference by failing to train employees for rare or unforeseen events.
Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation. . . .