perception--can only be determined by considering the totality of the circumstances. Tomka, 66 F.3d at 1305 (citing Harris, 114 S. Ct. at 371).
Wise has presented sufficient evidence of a hostile working environment to survive defendants' motion for summary judgment. Wise alleges not only the training room incident, which is significant, but also that she was harassed, propositioned, physically touched, and spoken to in a sexual manner by numerous police officers over the course of five years before the training room incident; that she was subjected to training films containing pornography; that pornographic materials were routinely posted at the station house; and that other women were subjected to similar circumstances. In addition, many of Wise's allegations are supported by the affidavit of Colleen Meenan. Accordingly, the defendants' motion for summary judgment on Wise's sexual harassment claim on the grounds that she failed to present sufficient evidence of a hostile environment is denied. See Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 62-64 (2d Cir. 1992) (reversing dismissal of sexual harassment claims); Barbetta v. Chemlawn Servs. Corp., 669 F. Supp. 569, 572-73 (W.D.N.Y. 1987) (denying summary judgment motion on plaintiff's hostile environment claim).
Defendants Anemone and Parrino argue that they are entitled to summary judgment dismissing Wise's equal protection claim against them because she has not demonstrated that they personally participated in the alleged harassment.
Although it is undisputed that Anemone and Parrino had supervisory authority, this fact alone is insufficient to hold a defendant liable for damages for constitutional violations alleged under § 1983. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Supervisors may be held liable, however, if they are personally involved in actions that cause the deprivation of constitutional rights. Id. The Court of Appeals for the Second Circuit has held that personal involvement for these purposes means " direct participation, or  failure to remedy the alleged wrong after learning of it, or  creation of a policy or custom under which unconstitutional practices occurred, or  gross negligence in managing subordinates." Id.; Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). A supervisory officer may be held liable for failing to intervene to stop the discriminatory conduct of other officers if the supervisor "had actual or constructive knowledge of gender-discriminatory policies and that he permitted such conduct to continue, or was grossly negligent in his management of subordinates who promoted such conduct." Carrillo v. Ward, 770 F. Supp. 815, 822 (S.D.N.Y. 1991); see also Meriwether v. Coughlin, 879 F.2d 1037, 1047-48 (2d Cir. 1989) (holding that "supervisory liability may be imposed when an official has actual or constructive notice of unconstitutional practices and demonstrates 'gross negligence' or 'deliberate indifference' by failing to act"); Williams, 781 F.2d at 323-24 (supervisory official may be personally liable under § 1983 if he was "grossly negligent" in managing subordinates). Section 1983 liability cannot, however, be based on mere negligence. Moffitt v. Town of Brookfield, 950 F.2d 880, 886 n.5 (2d Cir. 1991) (citing Daniels v. Williams, 474 U.S. 327, 328, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986)).
Wise alleges that Parrino was personally involved in the March 29 incident because he was present and failed to stop the alleged misconduct of officers over whom he had supervisory responsibility. Parrino argues that the equal protection claim against him should be dismissed because there is no evidence that he observed the training room incident, and that even if he did, this single incident did not create an "objectively hostile" environment.
Parrino's liability for the training room incident revolves around disputed issues of fact that cannot be resolved on a summary judgment motion. First, the parties dispute whether Parrino was present during the incident. Although Wise admits that she has "no idea" whether Parrino saw the alleged incident in the training room, she alleges that she saw him in the doorway as she walked out of the training room. There is certainly evidence that Parrino was in the doorway, that the incident was loud and raucous and took some time, and the jury could conclude that it disbelieved Parrino's denial that he witnessed the incident. In sum, the issue of Parrino's presence during this incident depends upon a credibility determination that can only be made at trial.
Parrino's also argues that even if he observed the training room incident, he did nothing to violate Wise's equal protection rights. This argument must fail as well. Parrino contends that the training room incident that Wise alleges fails to constitute an "objectively hostile" environment as a matter of law. To determine whether there is actionable sex discrimination, the court must consider the totality of the circumstances. Although Wise alleges that Parrino was involved in only this one incident, "[a] female employee need not subject herself to an extended period of demeaning and degrading provocation before being entitled to seek the remedies provided under Title VII." Carrero v. New York City Housing Auth., 890 F.2d 569, 578 (2d Cir. 1989). To determine whether harassment creates a hostile environment, it is proper to consider the offensiveness of the alleged behavior, not merely its duration. Id. Here, Wise alleges that she walked into the training room and observed an officer showing others a pornographic magazine containing sexually explicit pictures; that this officer made comments to her to get her attention; that after she asked the officer to put the magazine away, the other officers in the room began laughing, hooting, and making kissing sounds and cat calls; that there were other grossly offensive comments; and that all the while Parrino, a supervisor, watched this behavior and did not nothing to stop it. Resolving all ambiguities and drawing all reasonable inferences against the defendant, as required on a motion for summary judgment by the defendant, the totality of the circumstances indicate that the plaintiff has met her burden on this motion of demonstrating that she was subjected to unwelcome sexual harassment because of her gender, and that the conduct alleged was "'sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.'" Harris, 114 S. Ct. at 370 (quoting Meritor, 477 U.S. at 67). Whether the conduct at issue in this cause constitutes sexual harassment is a factual question that must be left to the jury.
Wise has also presented sufficient evidence to support a finding that Anemone was also personally involved in the alleged deprivation of Wise's Fourteenth Amendment rights. A jury could reasonably conclude that given the alleged omnipresence of pornography in the Precinct and Wise's alleged repeated complaints about sexually harassing incidents, Anemone had actual or constructive notice of the sexual harassment, and that his failure to remedy it demonstrated deliberate indifference. See Poulsen, 811 F. Supp. at 895 (holding that plaintiff's showing of supervisory authority of defendant made summary judgment premature).
Anemone and Parrino also argue that they are entitled to summary judgment dismissing this claim on the grounds of qualified immunity because it was "objectively reasonable" for them to believe that their acts did not violate "clearly established" statutory or constitutional rights.
Qualified immunity protects government officials from liability for civil damages as a result of their performance of discretionary functions if they are able to establish that it was objectively reasonable to believe that their acts did not violate clearly established rights. Anderson v. Creighton, 483 U.S. 635, 638-39, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995). Even where a plaintiff's rights are clearly established, qualified immunity protects a government official "if it was 'objectively reasonable' for him to believe his actions were lawful at the time of the challenged act." Lennon, 66 F.3d at 420. An official may satisfy the objective reasonableness test if he demonstrates that "'officers of reasonable competence could disagree' on the legality of the defendant's actions." Id. (quoting Malley v. Briggs, 475 U.S. 335, 340-41, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986)). Thus, if "the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendants' conduct under the circumstances," the defendants are entitled to summary judgment on qualified immunity grounds. Id. at 421. The use of this "objective reasonableness" test enables courts to decide qualified immunity claims as a matter of law when there are no material issues of disputed fact. Id.
The Court of Appeals has established a three-part test for determining whether a particular right was clearly established at the time the defendants 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.
Shechter v. Comptroller of the City of New York, 79 F.3d 265, 271 (2d Cir. 1996). The defendants do not dispute that the Court of Appeals for the Second Circuit has clearly stated that a pattern of sexual harassment constitutes sex discrimination in violation of the Equal Protection clause that is actionable under § 1983, and that this right has been defined 'with "reasonable specificity. " Annis, 36 F.3d at 254; Gierlinger, 15 F.3d at 34. The only question remaining, therefore, is whether under preexisting law reasonable officials would have believed that their acts were unlawful.
Defendant Anemone argues that he is entitled to qualified immunity because it was objectively reasonable for him to believe that neither he nor his subordinates had created a hostile work environment because he was not aware of any pornographic materials in the precinct during his tenure as commander and Wise did not complain to him about sexual harassment until the training room incident occurred. In addition, Anemone claims it was objectively reasonable for him to believe that he conducted a prompt, thorough, and effective investigation when the single incident came to light. These arguments are insufficient for summary judgment, however, because they rest on disputed issues of material fact, including whether the practices were so widespread that Anemone had actual or constructive knowledge of them and failed to take corrective action. If Anemone had actual or constructive knowledge of the widespread practices alleged and failed to take corrective action, then it would not have been objectively reasonable for him to believe that his conduct did not violate the plaintiff's rights. Compare Hathaway v. Coughlin, 37 F.3d 63, 69 (2d Cir. 1994), cert. denied sub nom. Foote v. Hathaway, 130 L. Ed. 2d 1074, 115 S. Ct. 1108 (1995) (claim of qualified immunity defense in Eighth Amendment case raised issues of fact for jury).
Parrino similarly relies on disputed issues of material fact to support his qualified immunity defense. Parrino argues that even if he had observed the training room incident, it would have been objectively reasonable for him to believe that he would not be creating a hostile work environment by not intervening in the incident. It is well-established in this Circuit, however, that a supervisor who is grossly negligent in permitting his subordinates to engage in gender discrimination can be held liable under § 1983. See Meriwether, 879 F.2d at 1047-48; Williams, 781 F.2d at 323; Carrillo, 770 F. Supp. at 822. Here, "the questions of whether a hostile work environment existed and, if so, whether [the defendant] did enough to eradicate it are triable issues of fact. While negligence [in response to the alleged harassment] would probably not void [the defendant] of his immunity, actual knowledge and acquiescence in the harassment should." Poulsen, 811 F. Supp. at 899. In other words, Parrino is not entitled to qualified immunity if it is determined at trial that he observed the training room incident, that this incident created a hostile work environment, and that he did nothing about it. See Bator v. State of Hawaii, 39 F.3d 1021, 1029 (9th Cir. 1994) (denying qualified immunity to supervisor on the grounds that "complete inaction in the face of claimed harassment "cannot be objectively reasonable conduct entitling a supervisor to qualified immunity"); Andrews v. City of Philadelphia, 895 F.2d 1469, 1479-80 (3d Cir. 1990) (rejecting qualified immunity defense because a reasonable official would understand that tolerating sexual harassment in the workplace violates the plaintiffs' rights, even if it was a "close case" whether the defendants had taken discriminatory action); Poulsen, 811 F. Supp. at 899. Accordingly, Parrino has not demonstrated that he is entitled to summary judgment on his claims of qualified immunity.
The Police Department and Anemone argue that they are also entitled to summary judgment dismissing Wise's First Amendment claims because her complaint of sexual harassment did not involve matters of public concern and thus was not protected speech. In addition, the Police Department alleges that Wise has failed to present evidence demonstrating a policy of retaliating against officers who make complaints against other police officers relating to matters of public concern. Anemone also claims that he is entitled to qualified immunity.
It is well-established that a public employer cannot retaliate against an employee for the exercise of the employee's First Amendment free speech rights. Rankin v. McPherson, 483 U.S. 378, 383-84, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987); Perry v. Sindermann, 408 U.S. 593, 597, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1057-58 (2d Cir.), cert. denied, 510 U.S. 865, 126 L. Ed. 2d 144, 114 S. Ct. 185 (1993); Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 780 (2d Cir.), cert. denied, 502 U.S. 1013, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991). To determine whether an adverse employment decision violates a government employee's right to free speech, the employee must show (1) that the speech at issue was constitutionally protected and (2) that it was a substantial or motivating factor in the adverse employment decision. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); White Plains Towing Corp., 991 F.2d at 1057-59. If a plaintiff proves these elements, a public employer and its agents may avoid liability by proving by a preponderance of the evidence that they would have made the adverse employment decision even in the absence of the protected conduct, or that the employee's speech interfered with the employer's "'effective and efficient fulfillment of its responsibilities to the public.'" White Plains Towing, 991 F.2d at 1059 (quoting Connick v. Myers, 461 U.S. 138, 150, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983)); Mt. Healthy, 429 U.S. at 286.
The question of whether speech is protected by the First Amendment is an issue of law for the Court. See Connick, 461 U.S. at 148 n.7; Ezekwo, 940 F.2d at 781. The First Amendment protects speech by a government employee only if the speech addresses a matter of public concern. Waters v. Churchill, 511 U.S. 661, 128 L. Ed. 2d 686, 114 S. Ct. 1878, 1884 (1994); Ezekwo, 940 F.2d at 781 (2d Cir. 1991). Speech will be considered to relate to a matter of public concern if it can be "fairly considered as relating to any matter political, social or other concern to the community." Connick, 461 U.S. at 146; see also Ezekwo, 940 F.2d at 781. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48; see also Ezekwo, 940 F.2d at 781 (citing Connick).
Not all employee speech is entitled to constitutional protection. If the employee's speech relates solely to issues that personally concern the employee, the speech is not protected. See Bernheim v. Litt, 79 F.3d 318, 324-25 (2d Cir. 1996); Saulpaugh, 4 F.3d at 143 (speech is not entitled to First Amendment protection if it is personal in nature and relates to the plaintiff's individual situation). As the Supreme Court instructed in Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), "when a public employee speaks not as a citizen upon matters of public concern, but instead as a employee upon matters of only 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." Id. at 147; see Bernheim, 79 F.3d at 324 (quoting Connick); White Plains Towing Corp., 991 F.2d at 1058 (same); Ezekwo, 940 F.2d at 781. The fact that an employee has a personal interest in certain speech, however, does not necessarily disqualify that speech from First Amendment protection. See Rodriguez v. Chandler, 641 F. Supp. 1292, 1299 (S.D.N.Y. 1986), aff'd, 841 F.2d 1117 (2d Cir. 1988) (TABLE); O'Malley v. New York City Transit Auth., 829 F. Supp. 50, 54 (E.D.N.Y. 1993); Poulsen, 811 F. Supp. at 894. As this Court stated in Rao v. New York City Health & Hosps. Corp., 905 F. Supp. 1236, 1242 (S.D.N.Y. 1995), "the fundamental question is whether the employee is seeking to vindicate personal interests or to bring to light a 'matter of political, social, or other concern to the community.'" Id. at 1243 (quoting Connick, 461 U.S. at 146).
The defendants contend that Wise's complaints of sexual harassment were not entitled to First Amendment protection because they were motivated by and concerned only her particular employment situation and thus did not involve matters of public concern.
There is a disputed issue of material fact concerning what Wise actually said which can only be resolved by the trier of fact. It is clear that if Wise's complaints "implicated system-wide discrimination they would have unquestionably involved a matter of 'public concern.'" Saulpaugh, 4 F.3d at 143; see also Bernheim, 79 F.3d at 325 (statements by school teacher regarding quality of education provided by public schools may be considered matters of public concern); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987) (speech concerning gender-discrimination involves issue of public concern); Poulsen, 811 F. Supp. at 894 (plaintiff raised issue of public concern by criticizing treatment of women in Police Department). Complaints concerning sexual harassment are protected if Wise "'wanted to debate issues of sex discrimination, [ ] her suit sought 'relief against pervasive or systemic misconduct by a public agency or public officials,' or [ ] her suit was 'part of an overall effort . . . to correct allegedly unlawful practices or bring them to public attention.'" Saulpaugh, 4 F.3d at 143 (quoting Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 420 (7th Cir. 1988). Here, Wise claims that when she spoke to Anemone after the training room incident, she complained about both that incident as well as the hostile work environment and sexual harassment she and other women in the precinct allegedly had endured in the past. She alleges she told Anemone that she "expected the environment for myself and women in the Precinct to change and improve." (Wise Aff. P 30.) Although Anemone claims that Wise only spoke about her individual employment situation, the parties' disagreement over the relevant facts cannot be resolved on a motion for summary judgment. See Rodriguez, 641 F. Supp. at 1299 (denying a motion to dismiss a First Amendment claim, because the "record established at trial may well indicate that plaintiff's speech was on issues of public concern").
Moreover, when Wise filed a complaint with the Police Department OEEO Office in June 1980, she detailed instances of sexual harassment against other women police officers and complained that she believed "that sexual harassing conduct has always been prevalent at the Precinct, and [believed] that other women are as affected by it as she is, but are afraid of coming forward with a complaint." (Marks. Decl., Exh. 7.) Wise has testified that she believed the lack of consequences for the individuals who harassed her sent a general message to other police officers that such conduct was tolerated and that she believed that only by renewing her complaints could she correct the situation. What Anemone said to the plaintiff after she filed the complaint is also in dispute. For example, Wise alleges that Anemone specifically criticized her for bringing up other people's names. (Wise Aff. P 41.) Whether Wise complained about systematic and pervasive misconduct and attempted to correct such an overall situation are all questions of fact that cannot be resolved on this motion.
The Police Department alleges that it is entitled to summary judgment dismissing the plaintiff's discrimination claim pursuant to § 1983 because Wise has failed to allege that the Police Department has an informal custom or practice of retaliating against police officers who make complaints about other police officers relating to matters of public concern.
Wise alleges that a wall of silence has effectively prevented women from speaking out about sexual harassment within the Department. The plaintiff argues that it was this custom or practice that Anemone referred to when he allegedly told her that if she complained about the training room incident the other officers would ostracize her. Moreover, Wise alleges that all but five of the male officers in the Precinct ceased speaking to her when she complained about sexual harassment, that Anemone yelled at her for filing the OEEO complaint, that she was denied a transfer that City policy required her to be given, and that she was ultimately given a retaliatory administrative transfer.
Whether the Department had a practice or policy of retaliating against women who complained about sexual harassment is a factual issue that must be determined at trial. Accordingly, the Department's motion for summary judgment dismissing the plaintiff's § 1983 claim based on the First Amendment is denied.
Anemone argues that he is entitled to qualified immunity against Wise's First Amendment claim because his actions were objectively reasonable.
Anemone does not dispute that it has been clearly established since Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), that a public employee's speech that touches on a matter of public concern is protected by the First Amendment, that an employee's complaints about system-wide discrimination relate to a matter of public concern, or that a public employer may not retaliate against an employee when she exercises her First Amendment rights. Instead, Anemone argues that it was objectively reasonable for him to conclude that the plaintiff's speech was personally motivated and not related to a matter of public concern. As explained above, however, the parties dispute whether Wise complained only about her own situation or whether she complained that sexual harassment was a problem affecting many women in the Precinct. If the facts establish that Wise did complain about systematic discrimination, and it was that speech that was a substantial or motivating factor in Anemone's actions against her, then it would not have been objectively reasonable for him to conclude that his actions were justified. Accordingly, the issue of whether Anemone is entitled to qualified immunity on the Wise's § 1983 claim alleging a violation of her First Amendment rights is an issue that must await trial for resolution.
Finally, the defendants argue that Wise's claims based on the New York State Human Rights Law must be dismissed because Wise has failed to establish that the Department condoned the alleged harassment and that the individual defendants are employers within the meaning of the statute.
The Department's motion for summary judgment on Wise's Human Rights Law claims against them must be denied for the same reasons summary judgment was inappropriate on Wise's § 1983 claims against the Department. As indicated above, there are disputed issues of material fact concerning the Department's knowledge of the alleged sexual harassment at the Precinct.
Summary judgment is also inappropriate on Wise's state law claims against the individual defendants Anemone and Parrino. In Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 660, 473 N.E.2d 11, 12 (1984), the New York Court of Appeals held that an employee may not be sued individually under the Human Rights Law "if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." Id.; see also Tomka, 66 F.3d at 1317. Under N.Y. Exec. L. § 296(6), however, it is an unlawful discriminatory practice "for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so." N.Y. Exec. L. § 296(6). The actions of individual defendants in creating a hostile working environment may subject them to liability under N.Y. Exec. L. § 296(6). See Tomka, 66 F.3d at 1317; see also Poulsen, 811 F. Supp. at 900; Bridges v. Eastman Kodak Co., 800 F. Supp. 1172, 1181 (S.D.N.Y. 1992); Wanamaker v. Columbian Rope Co., 740 F. Supp. 127, 135-36 (N.D.N.Y. 1990).
The individual defendants' personal involvement in the alleged sexual harassment and retaliation claims is disputed. Summary judgment is inappropriate because there are disputed issues of material fact concerning whether Anemone knew about the alleged hostile work environment in the Precinct and whether he condoned it, and whether Parrino observed the training room incident and failed to intervene. The plaintiff has presented sufficient evidence of the involvement of the individual defendants in the alleged hostile working environment to withstand the motion for summary judgment.
For the reasons stated above, the defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 dismissing the Complaint is DENIED.
Dated: New York, New York
June 12, 1996
John G. Koeltl
United States District Judge