89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The facts presented here are construed accordingly.
On February 7, 1991, Domenech telephoned the NYPD's Office of Equal Employment Opportunity ("OEEO") claiming that a superior officer in her precinct house had given her a command discipline ("CD") for taking a day off improperly after having an "Emergency day" ("E-day") denied. Domenech told the OEEO Officer that she did not know why she had been denied an E-day, but stated that a male officer in the same precinct had been granted an E-day on the same day. The OEEO officer concluded that Domenech had failed to articulate a colorable claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., or the sexual harassment policy of the NYPD. Def. Ex. 1.
On February 26, 1991, Domenech filed a written complaint with the OEEO, claiming that she had been discriminated against on the basis of her sex by the issuance of the CD against her. Def. Ex. 2. Domenech alleged in her complaint that Giamonte, the Commanding Officer of the precinct, had issued CDs to her and three other women in the precinct, while he had not issued CDs to any men. The OEEO officer investigated the Precinct's discipline log and found no evidence of disparate treatment of women officers. The officer concluded that there was no merit to Domenech's complaint. Def. Ex. 3.
Domenech claims that after filing her OEEO complaint, she was approached by Peters during an off-duty party. He told her that he really "liked her" and that she would never have to work on "foot post" if she left her husband. Domenech says that Peters apologized to her for his comments soon thereafter. Pl. Dep. at 83-85. She did not report this incident to any of the other defendants in this action. On August 25, 1991, Domenech received another CD for reporting late for duty; this CD was issued by Peters.
Schroeder began working with Domenech's squad in September 1991. Two weeks later, Domenech took a sick leave from duty, resuming work on January 1, 1992. Despite only working with her for two weeks, Schroeder subsequently gave Domenech a poor performance evaluation. Schroeder informed her that he had based his evaluation on what other "bosses," including Peters, had told him about Domenech. Amended Complaint at 7. In April 1992, Domenech was assigned to drive Sergeant Anthony Miranda (not a party to this action); at that time, Schroeder remarked to Sergeant Miranda that he should "watch" Domenech because she had made OEEO complaints. Id. at 8.
Domenech further complains that Moschella once stated to her, "You women are always in station houses--you fucking women," and that in December 1992, fellow police officers told her that if she ever called in as an "officer in trouble," nobody would respond. At about this time, Domenech approached Sanderson for advice about how to respond to these allegedly retaliatory actions; Sanderson merely advised her to "take the sergeant's test." Id. at 8-9.
After filing her original complaint on June 30, 1993, Domenech was subjected to allegedly retaliatory actions by the defendants, including the following: (1) while she was medically unable to work in August and September 1993, the NYPD refused to provide her with a department car to go to NYPD Health Services; (2) on August 5, 1993, she was served with disciplinary charges stemming from misconduct alleged to have occurred in December 1992, and for having an unauthorized beeper in June 1993; (3) defendants purposefully interfered with Domenech's child care schedule by requiring her to work afternoons and evenings at a location further from her home, and assigning her degrading and menial tasks. Id. at 21. However, when Domenech complained that she was being retaliated against for bringing this suit, defendants reassigned her to hours consistent with her child care obligations. Id.
Although Domenech attempts to state three causes of action in her amended complaint, they are reducible to a discriminatory retaliation claim under the First Amendment and Section 1983. To the extent that she alleges violations of her right to equal protection, these alleged violations were merely the events underlying her complaint of retaliatory actions. Both her memorandum of law and the statements of her counsel at oral argument make clear that Domenech is not, for the purposes of this lawsuit, bringing an equal protection claim based on sexual harassment or disparate treatment. See Pl's Memorandum of Law at 22.
I. The Precinct Defendants
Domenech asserts her right under the First Amendment to seek redress of perceived grievances against persons exercising state governmental authority. She claims that she suffered adverse personnel decisions and was subjected to discrimination by the Precinct Defendants as a result of her filing of OEEO complaints and this action at law.
Under Section 1983 of Title 42 of the United States Code,
every person who, under color of any statute, ordinance regulation, custom, or usage, or any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .
A plaintiff in a discrimination case bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). This burden is not onerous. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Sweeney v. Research Foundation of State Univ., 711 F.2d 1179, 1184 (2d Cir. 1983).
As stated above, a motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). "The trial court's task at the summary judgment stage of litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994). In the context of alleged employment discrimination, because an intent to retaliate is rarely, if ever, disclosed by an employer, and because the defendants' state of mind and intent are placed in issue, summary judgment is ordinarily inappropriate. Id.; see Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).
A. Establishment of a Prima Facie Case
To make out a prima facie case of discriminatory retaliation, an employee must show that (a) she engaged in protected activity; (b) her employer was aware of that activity; (c) she suffered adverse employment consequences; and (d) a causal connection exists between the protected activity and the adverse employment actions. Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992).
1. Protected Activity.
A public employee who claims to have suffered for the exercise of her First Amendment rights must establish, "as an initial matter, that [her] speech may be 'fairly characterized as constituting speech on a matter of public concern,'" White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1058 (2d Cir. 1993) (quoting Rankin v. McPherson, 483 U.S. 378, 384, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987)), cert. denied, 114 S. Ct. 185, and thus constitutes protected activity.
In Connick v. Myers the Supreme Court stated that, "when an employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of a personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." 461 U.S. 138, 147 (1983).
If Domenech's complaints "implicated system-wide discrimination they would have unquestionably involved a matter of 'public concern.'" Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 539, 114 S. Ct. 1189 (1994). The first question, then, is whether Domenech's OEEO complaints were meant to implicate system-wide discrimination, see O'Malley v. New York City Transit Auth., 829 F. Supp. 50, 53 (E.D.N.Y. 1993), or whether she was merely trying to voice her personal concerns.
In Saulpaugh v. Monroe Community Hosp., our Court of Appeals, in finding that the plaintiff failed to state a First Amendment claim, cited several cases involving a determination of whether a complainant had implicated "public concern." Id. Among those cases finding that the public interest was implicated are Wilson v. UT Health Ctr., 973 F.2d 1263, 1266 (5th Cir. 1992) (upholding a Section 1983 claim where the complaints concerned the routine use of sexually suggestive language by police officers toward all female officers and systemic instances of other forms of sexual harassment), cert. denied, 507 U.S. 1004 (1993); Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990) (en banc) (finding public concern where there was a "wholesale change in the highest police echelons allegedly only on a racial basis"), cert. denied, 501 U.S. 1204, 115 L. Ed. 2d 970, 111 S. Ct. 2796 (1991).
On the other hand, no violation was found where the plaintiff's complaints were "personal in nature and generally related to her own situation." Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir.) (holding that a medical resident's complaints about aspects of the residency program that negatively affected her did not implicate matters of public concern), cert. denied, 502 U.S. 1013, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991).
In Saulpaugh itself, the Court found no First Amendment violation. The plaintiff in that case complained of repeated acts of sexual harassment by her supervisor directed toward her. 4 F.3d at 138-39. The Court concluded that:
there [was] no indication that the plaintiff "wanted to debate issues of sex discrimination," that her suit sought "relief against pervasive or systemic misconduct by a public agency or public officials," or that her suit was "part of an overall effort ... to correct allegedly unlawful practices or bring them to the public attention."