delay in holding the seminar evidences deliberate indifference on the part of the Authority. In the two months between the incident and the seminar, the Authority investigated the harassment, confronted the perpetrator, scheduled and held a seminar. The Court finds little evidence of delay of any sort, let alone deliberate indifference, on the part of the Authority.
The alleged harassment by Howard, the next incident that plaintiff brought to the Authority's attention, also was handled in a manner negating any claim of deliberate indifference to plaintiff's rights. The Authority placed a well qualified person in charge of investigating plaintiff's allegations. The investigator wrote a detailed report and personally counseled Howard as did his immediate supervisor. Carrero's February 26, 1996 and April 12, 1996 complaints to the DEO were investigated thoroughly. Every other complaint that Carrero brought to the attention of her immediate supervisors was dealt with promptly and appropriately.
Because plaintiff has failed to demonstrate the existence of any material issue of fact as to the claim of failure to investigate her complaints, defendant's motion will be granted as to this aspect of the complaint.
The Retaliation Claim
Plaintiff alleges that she was harassed in retaliation for having brought the prior lawsuit and other complaints of sexual harassment against the Authority and certain of its employees in violation of the First Amendment.
It is important at the outset to note the distinction between retaliation cases brought under Title VII of the Civil Rights Act of 1964 and Section 1983, respectively. Title VII specifically provides a cause of action in favor of persons who are victims of retaliation for making complaints and bringing litigation under that statute. 42 U.S.C. § 2000e-2. Section 1983, under which this action is brought, does not. A Section 1983 retaliation plaintiff therefore may prevail only if the defendant violated her constitutional rights. In consequence, "[a] public employee who claims to have been discharged or disciplined for the exercise of First Amendment rights must establish two elements to prevail on the claim: (1) the conduct at issue must have been protected speech, and (2) the protected speech must have played a substantial part in the employer's adverse employment action, i.e., that the adverse action would not have occurred but for the employee's protected actions." Ezekwo v. N.Y.C. Health & Hospitals Corp., 940 F.2d 775 (2d Cir.), cert. denied, 502 U.S. 1013, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991). Plaintiff has failed to demonstrate that there is a material issue of fact as to either branch of this test.
"When a public employee speaks not only as a citizen upon matters of public concern, but instead as an employee upon matters only of 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." Connick v. Myers, 461 U.S. 138, 147, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). "The pertinent question is whether the speech at issue is a matter of public concern, an inquiry to be determined in light of the content, form and context of a statement. Ezekwo, 940 F.2d at 781; see Saulpaugh v. Monroe Community Hosp., 4 F.3d 134 (2d Cir. 1993).
Plaintiff nowhere alleges that any of the speech for which she allegedly was retaliated against was of public concern. Nor may plaintiff take comfort in the fact that part of her claim is grounded on a previous lawsuit, as it is the content of the suit, not the mere fact that she brought a suit, that triggers First Amendment rights. Rathjen v. Litchfield, 878 F.2d 836, 842 (5th Cir. 1989) ("law is no different where the act which allegedly gave rise to the retaliation claim is the filing of a grievance or a lawsuit."); see Sussman v. New York City Health & Hospitals Corp., 1997 U.S. Dist. LEXIS 8531, No. 94 Civ. 8461 (DBS), 1997 WL 334964, at *9 (S.D.N.Y. June 16, 1997) (same); McCarthy v. Board of Trustees of Jefferson Community College, 1991 U.S. Dist. LEXIS 3698, No. 89 Civ. 942 (NPM), 1991 WL 40885, at *8 (N.D.N.Y. Mar. 25, 1991) (same). Plaintiff therefore does not satisfy the first prong of the Ezekwo test.
Plaintiff has failed also to raise a genuine issue as to whether there was any connection between her speech and the discrimination she allegedly suffered. Each and every untoward action of which plaintiff complains in this case allegedly was committed by a co-worker or immediate supervisor located at the particular housing projects at which plaintiff was employed. many of them years after her previous lawsuit. She has offered no evidence that any of the alleged wrongdoers in this case was involved, or even aware of, her prior case, much less that their actions were a product of an order by or encouragement of more senior Authority personnel based at other locations. Each time plaintiff brought her grievances to the attention of Authority headquarters. specifically the DEO, her complaints were investigated in a responsible manner. Thus, plaintiff has failed to raise a genuine issue of fact as to the existence of any retaliatory motive.
For all of the foregoing reasons, defendant's motion for summary judgment dismissing the complaint is granted in all respects save that it is denied insofar as the plaintiff seeks to hold the Authority liable on a failure to train theory for alleged discrimination with respect to the November 1994 incident involving Velez and the May 1995 bathroom incident.
Dated: August 19, 1997
Lewis A. Kaplan
United States District Judge