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DOMENECH v. CITY OF NEW YORK

March 25, 1996

CAROL DOMENECH, Plaintiff, against THE CITY OF NEW YORK; DAVID N. DINKINS, Mayor of the City of New York, RAYMOND KELLY, Police Commissioner of the City of New York; DEPUTY CHIEF INSPECTOR PAUL SANDERSON; CAPTAIN ALBERT GIAMONTE, CAPTAIN THOMAS CAVANAUGH; LIEUTENANT CARMINE MOSCHELLA; LIEUTENANT JAMES PETERS; SERGEANT CRAIG SCHROEDER, and SERGEANT MICHAEL RYAN, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 In this action brought under 42 U.S.C. § 1983, for violations of plaintiff Carol Domenech's ("Domenech" or "Plaintiff") First Amendment rights to free speech and to petition the government for redress of grievances, Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 For the reasons set forth below, the motion will be granted in part and denied in part.

 Parties

 Plaintiff Domenech is a Police Officer in the New York City Police Department ("NYPD"), and was assigned to the 94th Police Precinct (the "Precinct") at the time the complaint was filed.

 The City of New York is a municipal corporation of the State of New York; defendant David N. Dinkins ("the Mayor") was the Mayor of the City of New York at the time the complaint was filed; defendant Raymond Kelly ("the Commissioner") was the Police Commissioner of the City of New York at the time the complaint was filed (they are collectively referred to here as the "Municipal Defendants"). Defendant Paul Sanderson is a Deputy Chief Inspector of the NYPD; defendants Albert Giamonte and Thomas Cavanaugh are captains in the NYPD and were assigned to the Precinct; defendants Carmine Moschella and James Peters are lieutenants in the NYPD and were assigned to the precinct; and defendants Craig Schroeder and Michael Ryan are sergeants in the NYPD and were assigned to the Precinct (collectively, the "Precinct Defendants").

 Prior Proceedings

 Domenech originally filed this complaint on June 30, 1993. The Defendants answered on August 31, 1993; Domenech responded by filing an amended complaint on November 11, 1993, averring the current causes of action. On January 1, 1994, the Defendants answered the amended complaint. The Defendants' motion for summary judgment was filed on December 22, 1994, and Domenech filed an affidavit in opposition to Defendants' motion on April 12, 1995. After oral argument was adjourned several times by consent of the parties, and reply papers were submitted, the motion was deemed fully submitted and argued on February 7, 1996.

 Facts

 Rule 56(c) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 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.

 Discussion

 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 ...

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