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June 12, 1996


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff Marissa Wise, a Sergeant in the New York City Police Department ("Police Department"), brings this action pursuant to 42 U.S.C. § 1983 and § 290 et seq. of the New York State Executive Law (the "Human Rights Law") against the Police Department, Louis Anemone, formerly the Commanding Officer of the 34th Precinct and currently the Chief of Patrol, and Roger Parrino, formerly a Lieutenant in the 34th Precinct and currently a Lieutenant in a Manhattan detective unit. Wise asserts two claims under § 1983: (1) her Fourteenth Amendment right to equal protection was violated because she was allegedly subjected to hostile work environment sexual harassment when she served as a police officer in the 34th Precinct; and (2) her First Amendment rights to free speech and to petition the government for redress of grievances were violated because she was allegedly subjected to retaliation after she complained about the harassment. Wise also asserts claims of discrimination and retaliation under the Human Rights Law. All three defendants move for summary judgment pursuant to Fed. R. Civ. P. 56 to dismiss all causes of action in this suit. For the reasons that follow, the defendants' motion is denied.


 Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). As the Court of Appeals recently reiterated in reversing a grant of summary judgment dismissing a pregnancy discrimination case, the "trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Quaratino v. Tiffany & Co., 71 F.3d 58, 65 (2d Cir. 1995) (quoting Gallo, 22 F.3d at 1224).


 Wise has been a member of the Police Department since 1984. Wise alleges that during her employment with the Police Department she was subjected to severe and pervasive sexual harassment that created a hostile work environment and that she suffered retaliation when she complained about it.

 Wise alleges that the sexual harassment began when she joined the 34th Precinct ("the Precinct") as a patrol officer after her graduation from the Police Academy in December 1984. She claims that during the six years she worked in the Precinct, she and other female police officers were routinely sexually harassed and that she herself was propositioned, physically touched, and spoken to in a sexual manner by police officers training her and by other people in the Precinct. (Affidavit of Marissa Perhaes Wise, January 15, 1995 ("Wise Aff."), PP 2, 8, 9, 16-21.) In her affidavit, Wise specifically alleges that numerous incidents of sexual harassment occurred throughout her tenure at the Precinct, including physical touching, sexual comments, and the constant presence of pornography. (Wise Aff. PP 6-23.)

 Wise claims that the culmination of this consistent sexual harassment was an incident that occurred on March 29, 1990 in the Precinct's Unit Training Room. At this time, Wise was a Youth Officer responsible for coordinating the Precinct's treatment of youth offenders and its relationship with local high schools. (Wise Aff. at PP 25-29.) Wise alleges that on that day she encountered officer Joseph Parisella and about eight other officers reading a pornographic magazine in a training room. (Wise Dep. at 29; Def's 3(g) P 12.) Wise alleges that when she walked into the room she heard Officer John Parisella making comments about the magazine calculated to get her attention. (Wise Aff. P 25.) Anemone described the picture as a "gross depiction of females, nude females." (Anemone Dep. at 64.) Wise approached Parisella and a vicious exchange ensued among Wise, Parisella, and another officer about the pornography and Wise's reaction to it. The other male officers allegedly began laughing, hooting, and making kissing sounds and cat calls. (Wise Dep. at 66-67; Wise Aff. PP 26-28; Anemone Dep. at 63.) The incident lasted approximately two minutes. (Wise Dep. at 69; Def's 3(g) P 17.) Wise claims that as she turned to walk out of the training room she saw Lieutenant Parrino in the doorway and passed him on her way out. (Wise Dep. at 68.) In her deposition, Wise said she had "no idea" whether Parrino actually observed the incident in the training room; Parrino denies that he did. (Wise Dep. at 68; Def's 3(g) P 18-19; Parrino Dep. at 35-36.)

 Later that day, Wise spoke to Louis Anemone, the Precinct's commanding officer from January to June 1990. She told Anemone that when she left the training room, Parrino was standing in the doorway and that he had not done anything about what had occurred. (Wise Aff. P 30.) Anemone said that he would not tolerate the behavior that she told him had taken place in the training room and that he would conduct an immediate investigation. (Anemone Dep. at 43-51; Wise Dep. at 72-74; Def's 3(g) at 21.) Wise claims that she complained to Anemone not only about the incident in the training room that day but also about the hostile work environment and sexual harassment that she has allegedly endured in the past. Anemone advised Wise that he was required to tell the Police Department's Office of Equal Employment Opportunity ("OEEO") about her allegations. (Anemone Dep. at 54-55; Wise Dep. at 74; Def's 3(g) P 22.)

 After Anemone heard Wise's version of the training room incident, he called Parrino into his office, and with Wise present, asked him what happened. (Anemone Dep. at 51; Wise Dep. at 73; Parrino Dep. at 37-40; Def's 3(g) P 24.) Wise contends that Parrino denied that he was present in the training room. (Wise Dep. I at 73; Pl.'s 3(g) P 10.) The defendants claim that Parrino said that he did not see anything but did stick his head in to remind the officers to sign out. (Anemone Dep. at 51-52; Parrino Dep. at 16-18; Def's 3(g) P 25.) Anemone said in his deposition that he was not comfortable with Parrino's version of events because Parrino would not look him in the eyes and was "visibly nervous." (Anemone Dep. at 53; Pl.'s 3(g) P 7.) Wise claims that Anemone also told her that he knew Parrino was lying when he denied having any knowledge about what had occurred in the training room. (Wise Dep. at 73; Wise Aff. P 31.) Anemone also said in his deposition that he believed Wise was telling the truth when she told him that she saw Parrino in the door. (Anemone Dep. at 157-58.) Anemone told Wise that he would continue to investigate the incident and would interview those officers whom plaintiff had identified as being in the training room during the incident. (Anemone Dep. at 54; Wise Dep. at 74; Def's 3(g) P 26.) Anemone notified Captain William Gardella of OEEO of plaintiff's allegations. (Anemone Dep. at 54-56; Marks Decl., Exh. 3; Def's 3(g) P 27.) On March 30, 1990, Anemone sent his initial report to OEEO. (Anemone Dep. at 73-74; Marks Decl., Exh. 3; Def's 3(g) P 28.)

 After submitting his initial report, Anemone interviewed the other officers who were in the training room. (Anemone Dep. at 69-72; Def's 3(g) P 29.) The plaintiff claims that none of the officers involved in the incident have submitted sworn statements about the incident. (Pl.'s 3(g) P 11.)

 Wise claims that after she reported the training room incident, all but five of the police officers in the Precinct stopped talking to her, and that her supervisors also failed to speak to her or acknowledge her. (Wise Aff. P 33.)

 Approximately one month after the March 29 incident, Anemone appointed defendant Lieutenant Roger Parrino to be the Precinct's integrity control officer in charge of the ethics and conduct of police officers in the unit. When Parrino was appointed to be the integrity control officer, Wise requested a transfer to certain other assignments to avoid being under Parrino's command. (Marks Decl., Exh. 4; Defs.' 3(g) P 36.) The defendants claim that all of the requested assignments were premier assignments, and that Anemone did not have the power to grant Wise's request. (Anemone Dep. at 83-88; Defs.' 3(g) P 37.) Wise admits that these assignments were desirable ones, but argues that her request was not unreasonable given her excellent background, which included being named Police Officer of the Year for the Precinct in 1989. (Pl.'s 3(g) P 12.) In addition, Wise alleges that she knows officers who received such a transfer by just making a phone call. (Id.)

 On April 23, 1990, Anemone submitted a final report to OEEO. In this report, Anemone made the following conclusions: (1) that Wise's allegations against Parrino could not be substantiated because all of the witnesses either denied seeing him, could not recall seeing him, or saw him enter and immediately leave the training room before the incident occurred; (2) that Wise's allegations against one officer involved in the training room incident were substantiated, and that he would receive a command discipline, and that he would be transferred from his anti-crime assignment to uniform patrol; and (3) that Officer Parisella's reading of a sexually explicit magazine in the training room was a violation of Police Department guidelines; however, because Parisella had immediately apologized to Wise and put the magazine away, he would not be disciplined. Anemone also reported that an inspection of the station house revealed no indication of similar material. He stated that the topic of sexually explicit material was addressed at the supervisor's conference and unit training session, and that desk officers had been reminded of their responsibility to remove sexually explicit material from the station house. (Defs.' 3(g) P 38; Marks Decl., Exh. 5.) In his report Anemone did not address Wise's complaints concerning a pattern of sexual harassment taking place prior to the training room incident. Captain Gardella of OEEO reviewed Anemone's report and found that the comments made to Wise by the police officer who was disciplined were inappropriate but did not constitute sexual harassment. (Marks Decl., Exh. 5 at 3; Anemone Dep. at 89-90; Defs.' 3(g) P 39.) Gardella made no findings with respect to whether Parrino had in fact witnessed the incident in the training room. (Pl.'s 3(g) P 13.)

 On or about June 8, 1990, Wise filed a written complaint with the OEEO complaining about the March 29 incident. (Marks Decl., Exh. 6; Defs.' 3(g) P 40.) Investigators from the OEEO interviewed Wise on two occasions and also spoke with other officers from the Precinct. Wise alleges that OEEO spoke with only two other officers, one of whom said "there was a problem with sexual harassment in the past," and both of whom told OEEO that they believed the subsequent removal of Wise from her detail was in retaliation for having made an OEEO complaint. (Marks Decl., Exh. 7; Pl.'s 3(g) P 16.)

 Wise alleges that after she filed her complaint with the OEEO, she told Anemone that she had made additional allegations to OEEO about harassment that occurred before he became Precinct Commander. Anemone testified that he told her that he was disappointed that she had not mentioned this to him before, and indicated that she had damaged her working relationship with him. (Anemone Dep. at 108-10, 114.) Wise swears that Anemone called her into his office and told her angrily, "Who do you think you are going down to Equal Opportunity?" He also allegedly told Wise that she had no right to go down there or to bring up other people's names, and said that her effectiveness as a police officer was "zero." (Wise Aff. P 41; Pl.'s 3(g) P 28.)

 Anemone was promoted to Inspector and became Commanding Officer of the 9th Division. (Pl.'s 3(g) P 18; Anemone Dep. at 20-21; Defs.' 3(g) P 44.) Captain Nicholas Estavillo, who had been the Executive Officer of the Precinct under Anemone, succeeded Anemone as the Precinct Commander. (Estavillo Dep. at 4-6.) On July 23, 1990, Estavillo transferred six officers who had staff positions in the precinct to patrol duties. (Marks Decl., Exh. 8.) Wise was transferred from her job as Youth Officer to a street patrol foot post. Wise claims that although she was occasionally given other assignments such as going to court to testify about arrests she had made previously, the majority of her days were spent on foot posts. (Wise Aff. P 47; Pl.'s 3(g) P 20.) The defendants claim that the purpose of these reassignments was part of the community policing program intended to put more officers on the street. (Estavillo Dep. at 30-40; Defs.' 3(g) P 47.) The plaintiff alleges that she was reassigned because she had complained about sexual harassment. (Wise Aff. PP 43-46; Pl.'s 3(g) P 19.)

 Wise was eventually transferred to the 50th Precinct. She subsequently learned that she had received an administrative transfer. (Wise Aff. P 53; Pl.'s 3(g) P 21.) Wise claims that there is a general stigma attached to the receipt of administrative transfer, that officers so transferred are suspected of corruption or have been disciplinary problems in a prior assignment, and that she received an administrative transfer in retaliation for having complained about sexual harassment. (Wise Aff. PP 53-55; Pl.'s 3(g) P 21.) Anemone stated in his deposition that an administrative transfer is "a transfer based on probably a disciplinary record. It is not a favorable transfer." (Anemone Dep. at 130.) In addition, Anemone said that an administrative transfer gives an individual a "label as being a troublemaker or someone with a particular problem. (Anemone Dep. at 145; Pl.'s 3(g) P 21.)

 At the OEEO's request, Estavillo conducted an investigation into allegations Wise made in her June 1990 OEEO complaint. Estavillo issued a final report on the March 29 incident on April 30, 1991. Estavillo concluded that his investigation of the training room incident supported Anemone's original findings, and that Wise's other allegations were unsubstantiated because they could neither be proved or disproved. (Marks Decl., Exh. 17; Defs.' 3(g) PP 60-61.)

 In 1990 it was the official policy of the Police Department to prohibit sexual harassment, (Marks Decl., Exh. 1; Def's 3(g) P 23; Pl's 3(g) P 9), but Wise claims that this policy was not enforced and sexual harassment was in fact condoned, (Wise Aff. P 8-24; Meenan Aff. at 8-10). Wise alleges that at the time the events alleged in this lawsuit took place, the Police Department did not provide any sexual harassment training for officers. (Wise Aff. P 24; Meenan Aff. at 12-14.) In mid-December 1990, Estavillo took some measures to reinforce the Department's policy prohibiting sexual harassment, including instructing supervisors to monitor conditions at the Precinct, incorporating the subject matter in training sessions for police officers, and showing a training film. (Marks Decl., Exh. 16.)


 Sexual harassment in the workplace is actionable under 42 U.S.C. § 1983 as a violation of the Fourteenth Amendment right to equal protection. Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994); Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir. 1994); Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143-44 (2d Cir. 1993), cert. denied, 510 U.S. 1164, 127 L. Ed. 2d 539, 114 S. Ct. 1189 (1994). Section 1983 liability "can be imposed upon individual employers, or responsible supervisors, for failing properly to investigate and address allegations of sexual harassment when through this failure, the conduct becomes an accepted custom or practice of the employer." Gierlinger, 15 F.3d at 34. Not all sexual harassment equals sex discrimination, but "harassment that transcends coarse, hostile and boorish behavior can rise to the level of a constitutional tort." Annis, 36 F.3d at 254.

 The Police Department argues that it is entitled to summary judgment dismissing Wise's claim for gender discrimination because Wise has failed to show that a custom or policy of the Department caused the deprivation of her Fourteenth Amendment rights. Anemone and Parrino contend they are entitled to summary judgment on this claim because there is no evidence that they personally participated in the alleged sexual harassment and because they are protected by the doctrine of qualified immunity. In addition, all three ...

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