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FARRELL v. NEW YORK

November 23, 1996

PATRICIA FARRELL, Plaintiff, against STATE OF NEW YORK; NEW YORK STATE DIVISION OF STATE POLICE; JAMES W. McMAHON, Superintendent of the New York State Police; NEW YORK STATE BUREAU OF AUDIT AND CONTROL; DAVID DENNIN, and DENNIS CONWAY, Individually and as Members of the New York State Division of State Police, Defendants.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND & FACTS

 The plaintiff, PATRICIA FARRELL, brings this case alleging violations of Title VII, 42 U.S.C. § 1983 and the equal protection clause, and various state law actions both known and unknown to this Court.

 More specifically, the plaintiff has been a New York State Trooper since 1979. She achieved the rank of sergeant in 1986, and currently is an investigator with the Community Narcotic Enforcement Team. The plaintiff charges that the defendants have maintained inadequate affirmative action policies, have subjected the plaintiff to sexual harassment or failed to take action to remedy complaints of sexual harassment, have maintained unequal facilities, and have discriminated against the plaintiff on the basis of her gender in job assignments and promotional opportunities.

 As to the alleged inadequate affirmative action policies, the plaintiff alleges that from the date she started her employment with the New York State Police inadequate mechanisms for handling complaints of sex discrimination have existed at work. The plaintiff provides no more specific factual foundation for this claim.

 As to the alleged acts of sexual harassment, the plaintiff alleges that from the time she entered the academy to train to become a Trooper she was subjected to acts of harassment. The specific acts complained of are: (1) in mid to late 1990 derogatory and demeaning materials relative to the plaintiff's pregnancy were posted on bulletin boards and on her personal locker; (2) without specifying dates, the plaintiff alleges that her identification was defaced, her name was crossed off work schedules, her locker was tipped forward, stripes were partially ripped off her uniform, a photograph of her daughter was defaced; (3) at some point in 1992, the message "Merry Christmas Bitch (if you're still here)" was left on the December 25, 1992, page of her calendar; (4) in 1994 a fully loaded magazine from her gun belt was stolen; and (5) during 1994 and 1995 the plaintiff received harassing telephone calls. The plaintiff alleges that she reported these incidents to her supervisors, but that no action was taken. The defendant Dennin was her supervisor prior to 1993, and during 1993 the defendant Conway became the plaintiff's supervisor.

 The plaintiff further alleges that training materials and other written materials distributed by the Division are gender biased, referring only to men. She also alleges, without specificity, that sexually explicit jokes about male genitalia, battered women, and rape are common during speeches and training seminars attended by male and female officers.

 As to the alleged unequal facilities, the plaintiff alleges that the locker and toilet facilities supplied for female officers are inferior to those provided for use by males. There is no factual elaboration of this claim.

 As to the alleged job assignment discrimination and failure to promote, the plaintiff alleges a number of incidents. First, the plaintiff alleges that in 1987, after achieving the rank of sergeant, she applied for a position for which she was qualified at the Bureau of Criminal Investigation. She did not receive the position. In February of 1990, an internal memo solicited applicants for the position of Senior Investigator, and set forth qualifications criteria. The plaintiff alleges that she met the criteria, but that on December 31, 1993, a male who did not meet the criteria was elevated to the position. It is alleged that this failure to promote was based on her gender.

 Second, the plaintiff alleges that she has from 1989-1991 received "Outstanding" performance evaluations. However, in 1992 she received a significantly lower evaluation. She was given no explanation, and was denied a semi-annual review, to which she claims she was entitled, to assess if progress had been made. It is also alleged that the motivation for this lower evaluation was to hurt the plaintiff's chances for making the rank of lieutenant, as it was known that the plaintiff was preparing to take the lieutenant's exam in May 1993.

 Third, in 1993, the plaintiff was investigated for an incident of alleged racial discrimination. The defendant Conway informed the plaintiff that the allegations were determined to be unfounded. However, the plaintiff alleges that there was an improper disclosure of parts of the complaint that had been filed. The plaintiff complained to the defendant Conway and asked that the disclosure be investigated, but he declined.

 Fourth, in late June 1993, the plaintiff initiated a personnel complaint against one former and two current supervisors *fn1" for allegedly creating a hostile work environment. Allegedly in retaliation for that complaint, the plaintiff alleges that the defendant Conway issued a written memorandum to the plaintiff referring to the incident of alleged racial discrimination investigated previously. In addition, the plaintiff was reassigned certain duties and responsibilities.

 Fifth, also in June 1993, the plaintiff reported that she had information regarding alleged cheating on promotional examinations. Allegedly as a result of this complaint, the plaintiff was referred to the Employee Assistance Program, a referral program for Troopers with deteriorating work performance. *fn2" It is not expressly alleged that this action was taken on account of her gender or in retaliation for making a sexual harassment complaint.

 Sixth, prior to January 12, 1994, the plaintiff alleges that she was twice threatened by the defendant Conway with being charged with violations of the Penal Law. The violations are not specified in the Complaint. This prompted the plaintiff to become unable to work and to seek medical and psychological treatment for stress. On August 2, 1994, the plaintiff was threatened by the defendant Conway with criminal arrest. The proposed charge is not specified. Additionally, the plaintiff alleges that she was verbally maligned and ridiculed in front of subordinates. Finally, on August 3, 1994, the plaintiff was subjected to a crude and offensive gesture and remark by a Trooper Gannon.

 Seventh, the plaintiff alleges that on or about August 29, 1994, a fully loaded division issued magazine was stolen from her gun belt.

 The plaintiff alleges that all of the above acts were committed because she is a woman, and that all were designed to harass her or to effectuate sexual discrimination.

 The defendant has moved to dismiss the plaintiff's Complaint for failure to state a cause of action for which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). It is the defendant's contention that certain of the plaintiff's allegations are time-barred, both as to the Title VII claim and as to the 42 U.S.C. § 1983 claim, that the Court lacks subject matter jurisdiction over the Title VII claim because of a failure to obtain a right to sue letter, that the Title VII claim may only be asserted as against her employer, the New York State Division of State Police, that the 42 U.S.C. § 1983 claim must be dismissed as against certain defendants, that the Complaint fails to state a claim for sexual harassment as against the defendants Conway and Dennin, and that the state law claims should be dismissed. The Court now turns to the issues presented.

 A. Failure To Obtain A Right To Sue Letter

 The initial issue for this Court goes to the statutory requirements, under Title VII, for filing a Complaint in federal court.

 As a general rule, Title VII requires a claimant who wishes to bring a suit in federal court, inter alia, to file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within one hundred eighty (180) days "after the alleged unlawful employment practice occurred," or within three hundred 300 days of the alleged discrimination if the claimant "has initially instituted proceedings with a State or local agency with authority to grant or seek relief ... or to institute criminal proceedings ..." 42 U.S.C. § 2000e-5(e) (300 day period is the available filing period for claimants in New York which has its own fair employment laws). Title VII further provides that "a civil action may be brought against the respondent named in the charge ... by the person claiming to be aggrieved" within 90 days of receipt of what is known as a "right-to-sue" letter from the EEOC. 42 U.S.C. § 2000e- 5(f)(1). Failure to file before ...


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