to the employer if the plaintiff proves "that the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Kotcher, 957 F.2d at 63; Tomka, 66 F.3d at 1305. A plaintiff can demonstrate an employer's knowledge of the harassment by "constructive notice (i.e., management should have known)." Van Zant, 80 F.3d at 715.
Riedinger asserts that Finn, Johnson, and Braun -- all supervisors to Riedinger at varying levels -- were aware of D'Amicantino's conduct and that they all failed to take appropriate measures to remedy the situation. Defendants, on the other hand, point to several actions to support their assertion that they responded to Riedinger's concerns in an appropriate manner. First, they claim that shortly after plaintiff complained to Finn in July 1993, much of the sexual harassment stopped. Second, they allege that after Riedinger formally complained to Johnson in September 1993, he provided her with information on sexual harassment and offered to speak to D'Amicantino. Third, they note that in response to Riedinger's formal complaint in December 1993, Braun established the City's antidiscrimination policy and opened an investigation into plaintiff's grievance.
Riedinger alleges that these responses were not "immediate and appropriate" and therefore inadequate to absolve defendants of liability. See Trotta v. Mobil Oil Corp., 788 F. Supp. 1336, 1351 (S.D.N.Y. 1992). She cites, as examples of these inadequacies, the untimeliness of Braun's investigation, which took place more than four months after Riedinger's complaint to Finn and three months after her conversation with Johnson; Braun's failure, during the investigation, to question other possible witnesses to the alleged harassment; and the absence of evidence that Johnson or Braun officially disciplined D'Amicantino for his behavior.
These alleged shortcomings in defendants' response to plaintiff's complaints provide an adequate basis for a jury reasonably to conclude that the defendants either provided no reasonable avenue for complaint or that they knew about the discrimination to which Riedinger was subjected and acted inadequately to alleviate it. See Dortz v. City of New York, 904 F. Supp. 127, 154-55 (S.D.N.Y. 1995). Accordingly, defendants' motion for summary judgment is denied with respect to Riedinger's Title VII hostile work environment claim.
TITLE VII RETALIATORY DISCRIMINATION
Under Title VII, "it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because she has opposed any . . . unlawful employment practice." 42 U.S.C. § 2000e-3(a). To make a prima facie case of retaliatory discrimination, a plaintiff must demonstrate by a preponderance of the evidence: "i) participation in a protected activity known to the defendant; ii) an employment action disadvantaging the plaintiff; and iii) a causal connection between the protected activity and the adverse employment action." Tomka, 66 F.3d at 1308; see also Kotcher, 957 F.2d at 64.
Riedinger easily satisfies, for the purposes of this motion, the first two prongs of that prima facie test. First, it is well established that internal complaints, such as those made by Riedinger to Finn, Johnson and Braun about harassment she experienced at the Division constitute a protected activity. See Kotcher, 957 F.2d at 65; Tomka, 66 F.3d at 1308. Second, retaliatory conduct may not only consist of an employee's termination, but can also include of less severe action as long as the conduct "affects the terms, privileges, duration, or conditions of the plaintiff's employment." Dortz, 904 F. Supp. at 156 (internal quotations omitted). Riedinger contends that in response to her complaints, she was subjected to the following adverse employment decisions: changes in her work schedule, the denial of a leave of absence, yelling and verbal insults, threats of termination, and written reprimands and negative performance evaluations. These actions at least arguably affected Riedinger's ability to perform her job and thus raise genuine issues of material fact in regard to the second prong of plaintiff's prima facie case of retaliation. See id; Yaba, 961 F. Supp. at 621; Brown, 1997 WL 231143, at *9-10.
Riedinger has also adduced sufficient evidence to establish a causal connection between the protected activity and the adverse employment action. Riedinger alleges that the actions took place from a few days to two months after her complaints. A causal connection can be established through such indirect evidence of close proximity in time. See Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980). Thus, a fact finder could reasonably find an inference of discrimination sufficient to establish the third prong of Riedinger's prima facie claim. Tomka, 66 F.3d at 1308; see also Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986).
Once a plaintiff has established a prima facie case, the burden shifts to the defendants who "must demonstrate legitimate reasons for [their] actions, whereupon the plaintiff bears the burden of showing that the defendant[s'] explanations are pretext for the true discriminatory motive." Van Zant, 80 F.3d at 714; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-7, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). At this stage, Riedinger will prevail so long as her evidence is sufficient to raise a genuine issue of material fact as to whether defendants' proffered reasons are merely pretext for the adverse employment actions. Tomka, 66 F.3d at 1309.
Here, defendants gave Riedinger letters of reprimand for tardiness twice in February 1994, when she had been approximately six minutes late to work. Defendants contend that their motivation for issuing these reprimands was nondiscriminatory, as plaintiff was the only secretary at the Division and was required to be at work on time to open the office. Riedinger, however, asserts that this explanation is pretext, noting that no one had checked on her tardiness before she complained about D'Amicantino and that it had not been the Division's general policy to give letters of reprimand to employees who were only a few minutes late. Braun confirmed in his deposition that memorializing criticisms over tardiness was highly unusual.
I find that defendants' response, at least arguably, creates an issue of material fact as to whether defendant's proffered reasons are pretexual. Accordingly, defendants' motion for summary judgment is denied with respect to plaintiff's Title VII retaliation claim.
FIRST AMENDMENT CLAIMS
Defendants further move for summary judgment with respect to Riedinger's claims that they violated her right to free speech and the right to petition the government. Defendants assert that their actions as public employers did not violate plaintiff's rights under the First Amendment.
For a public employee to establish that her First Amendment rights have been violated, she must show: "(1) that the conduct at issue was protected speech; and (2) that the speech played a substantial part in the employer's adverse employment action." Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 780 (2d Cir. 1991).
The speech of a government employee is protected if it can "be fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146, 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 an employee upon matters only of personal interest," the First Amendment's protections do not apply. Id. at 147. "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.'" Rao v. New York City Health & Hosps. Corp., 905 F. Supp. 1236, 1243 (S.D.N.Y. 1995) (quoting Connick, 461 U.S. at 146).
A public employee's comments on gender discrimination may, in certain circumstances, constitute matters of public concern. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987). For example, if a plaintiff's suit is "'part of an overall effort . . . to correct allegedly unlawful practices or bring them to public attention,'" Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993) (quoting Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 420 (7th Cir. 1988)), or if her "complaints to her supervisors implicated system-wide discrimination they would have unquestionably involved a matter of 'public concern.'" Saulpaugh, 4 F.3d at 143. An employee's speech does not touch up on a matter of public concern where her complaints are related to her own situation. Saulpaugh, 4 F.3d at 143.
Here, Riedinger has adduced no evidence that the harassing behavior extended to anyone other than herself or was part of a larger effort to bring defendants' allegedly unlawful practices to public attention. While Riedinger contends that Finn, the only other woman at the Juvenile Division, was also the target of D'Amicantino's alleged harassment, that contention is not supported by the evidence before this Court, including Finn's own deposition testimony. Even if sufficient evidence were subsequently uncovered that D'Amicantino had also sexually harassed another employee, the facts presently before the Court do not support a finding that plaintiff's complaints were motivated by or dealt with anything other than her individual employment situation. See Saulpaugh, 4 F.3d at 143.
As Riedinger has failed to demonstrate that her speech involved a matter of public concern, defendants' motion for summary judgment is granted with respect to plaintiff's First Amendment claims.
CONSTRUCTIVE DISCHARGE AND DUE PROCESS VIOLATIONS
Riedinger alleges that defendants violated her procedural due process rights by constructively discharging her without the benefit of a pre-deprivation hearing. Defendants base their motion for summary judgment on the absence of evidence that their conduct amounted to a constructive discharge.
"Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit voluntarily." Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 89 (2d Cir. 1996); see also Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). "Working conditions are intolerable if they are 'so difficult or unpleasant that a reasonable person would have felt compelled to resign.'" Chertkova, 92 F.3d at 89 (citing Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987)) (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)).
A constructive discharge may be inferred when an employer threatens an employee with termination, suggests that she resign or retire, demotes her by changing her job title and responsibilities for a non-business related reason, or reduces her salary or benefits. See Stetson v. Nynex Service Company, 995 F.2d 355, 360 (2d Cir. 1993) (citing Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1160-61 (3d Cir. 1993)). "Certain factors, standing alone are legally insufficient to support constructive discharge . . . . But the effect of a number of adverse conditions in the workplace is cumulative." Chertkova, 92 F.3d at 90.
I find that Riedinger has adduced sufficient evidence to preclude this Court from granting summary judgment on plaintiff's due process claim. First, although Riedinger complained to Finn in mid-July 1993, she continued to work with D'Amicantino on a daily basis until her resignation. See Dortz, 904 F. Supp. at 159 ("When an employee who has suffered from discriminatory conduct is required to engage in daily dealings with her alleged wrongdoer, she may suffer an aggravated sense of humiliation giving rise to a constructive discharge.") (internal quotation omitted). Second, because plaintiff has made out a prima facie case of hostile work environment sexual harassment, the issue of "whether a reasonable person might find this environment so unpleasant and difficult that she would feel compelled to resign is a factual question properly left for trial." Id. at 159. Third, because the alleged harassment and retaliation continued despite her complaints to Finn, Johnson and Braun, a jury could determine that defendants did not and would never address her concerns. See id.
Riedinger also alleges that her employers twice threatened her with dismissal, once in a phone call with Johnson and once in a letter from Braun. Both instances occurred with respect to her back injury in September and October 1993. Defendants argue that they "threatened" plaintiff only because they were confused as to her sick leave and disability compensation. Plaintiff asserts that these incidents constituted continued acts of retaliation. A reasonable person, viewing these conditions collectively, could conclude that the working conditions were so intolerable as to compel plaintiff to resign. Accordingly, defendants' motion for summary judgment on this claim is denied.
Finn, Johnson, Sassi and Braun contend that they are entitled qualified immunity from suit on plaintiff's due process claim insofar as they are sued in their individual capacities. Qualified immunity is an affirmative defense that shields defendant officials in their individual capacities "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982); Frank v. Relin, 1 F.3d 1317, 1327-28 (2d Cir. 1993); Piesco v. City of New York, Dept. of Personnel, 933 F.2d 1149, 1160 (2d Cir. 1991). Such officials may also be qualifiedly immune "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987); Frank, 1 F.3d at 1328; Piesco, 933 F.2d at 1160.
To determine whether a right had been clearly established at the time that the defendant acted, a court must decide:
(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 City of New York, 79 F.3d 265, 271 (2d Cir. 1996); Frank, 1 F.3d at 1328; Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S. 962, 112 S. Ct. 1565, 118 L. Ed. 2d 211 (1992).
When the law is clearly established, a defendant cannot claim qualified immunity, because "a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S. at 818-19, 102 S. Ct. at 2738. For a defendant to employ the affirmative defense, he must demonstrate that it was objectively reasonable for him to believe that he did not violate the plaintiff's rights. Frank, 1 F.3d at 1328. As our Court of Appeals has stated,
summary judgment will be appropriate only if the defendant 'adduce[s] sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant' to believe that he was acting in a fashion that did not clearly violate an established federally protected right.