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RIEDINGER v. D'AMICANTINO

August 19, 1997

SANDRA RIEDINGER, Plaintiff, against THOMAS D'AMICANTINO, individually and as a Juvenile Officer, RENEE FINN, individually and as Detective Sergeant and Officer in Charge of the Juvenile Division of the City of Beacon Police Department, JOHN JOHNSON, individually and as Chief of Police of the City of Beacon Police Department, JOSEPH H. BRAUN, individually and as City Administrator for the City of Beacon, RICHARD SASSI, individually and as Captain and/or Acting Chief of Police in the City of Beacon Police Department, and the CITY OF BEACON, New York, Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Plaintiff Sandra Riedinger ("Riedinger") brings this action against defendants Thomas D'Amicantino ("D'Amicantino"), Renee P. Finn ("Finn"), John Johnson ("Johnson"), Joseph H. Braun ("Braun"), and Richard Sassi ("Sassi") as individuals and in their official capacities, and the City of Beacon ("City"), pursuant to 42 U.S.C. § 1983, alleging violations of her First Amendment rights to free speech and to petition the government for redress of grievances, and constructive discharge in violation of the Fourteenth Amendment, as well as discrimination and retaliation in violation of the Civil Rights Act of 1964, Title VII, 42 U.S.C. §§ 2000e-2(a)(1) and 1-3(a). Riedinger also asserts a number of parallel state law claims pursuant to this Court's pendant jurisdiction. See 28 U.S.C. § 1367(a).

 Before this Court is defendants' motion for summary judgment, pursuant to Fed. R. Civ. P. 56(b). For the reasons stated below, defendants' motion is granted in part and denied in part.

 BACKGROUND

 On a motion for summary judgment, "as a general rule, all ambiguities and references to be drawn from the underlying facts should be resolved in favor of the party opposing the motion." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988). The following facts are construed accordingly.

 In addition, D'Amicantino received magazines and catalogues that displayed models in various stages of undress at the Division office from at least April 1993 until after September 1993. Riedinger, in her role as senior stenographer at the Division, was required to deliver these publications, along with the rest of the Division's mail. Riedinger contends that, on a number of occasions, D'Amicantino alluded in conversations with her to photographs in the publications.

 In July 1993, Riedinger complained to Detective Sergeant Finn, her supervisor and Officer in Charge of the Division, about the problems that she had been experiencing with D'Amicantino. According to Riedinger, Finn responded by saying that very little could be done about the situation.

 On August 6, 1993, Finn altered Riedinger's work schedule, which had been the same for the previous six years. Riedinger filed a grievance with the Division to have her old hours restored, claiming that the changes in her schedule created a hardship for her with child care. The petition was denied.

 On September 17, 1993, Riedinger filed a complaint with Police Chief John Johnson about her experiences working with D'Amicantino and Finn at the Division. According to Riedinger, Johnson "told [her] that what [she] was experiencing was sexual harassment," and advised her to contact the New York State Department of Human Rights to pursue her complaint. Johnson, who disputes making that statement, instead claims that he provided her with a handout from Duchess County Division of Human Rights, which described the sort of behavior that could be considered sexual harassment. Johnson Dep. at 13-19. Johnson also told her that he would speak to D'Amicantino about his behavior.

 On September 27, 1993, Riedinger injured her back in a non-work related injury and had to take time off from work. Shortly after that, Johnson told Riedinger that she had used all of her sick time, and because she was not working, the Division was terminating her from her job. On October 21, she received a letter from City Administrator Joe Braun which stated, "Please appreciate, unless you return to work immediately, you are absent without leave and must be replaced." Riedinger asserts that, at the time, she had vacation and personal time available to her. Indeed, Braun admits that he was mistaken as to the City's sick leave policy when the actions took place. In early November 1993, Riedinger returned to the Division on a part-time basis.

 On December 7, 1993, Riedinger filed a written complaint alleging "sexual harassment and misconduct within the Juvenile Division." Braun investigated the complaint, interviewing Riedinger, Finn and D'Amicantino. He subsequently drafted and circulated an anti-harassment policy for all City employees, which was implemented on February 1, 1994. Braun did not discipline anyone in the Division for misconduct.

 On February 2, 1994, Finn placed a letter of reprimand in Riedinger's file for being approximately six minutes late to work on an unspecified date in December 1993. On February 4, 1994, plaintiff received a second reprimand for tardiness. That same day, Riedinger claims that Finn yelled at her, forbidding her from leaving the Division office without permission. Riedinger then tendered her resignation.

 On June 8, 1994, Riedinger filed a complaint with the EEOC, charging that she had been the object of gender discrimination in the form of sexual harassment and retaliation.

 SUMMARY JUDGMENT STANDARD

 The Court will grant summary judgment only "if 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 judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In deciding this motion, the Court must resolve all ambiguities and draw all factual inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). Summary judgment is inappropriate when the nonmovant's evidence is merely conclusory, speculative or not significantly probative. Knight v. United States Fire Ins. Co., 804 F.2d 9, 12-15 (1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).

 CONTINUING VIOLATION AND TITLE VII CLAIMS

 Defendants' principal argument in support of summary judgment is that much of the conduct complained of with regard to plaintiff's hostile work environment claim *fn1" took place more than 300 days prior to the filing of plaintiff's EEOC charge and, to that extent, is time barred. Riedinger, in turn, asserts that the acts complained of constituted a continuing violation of her civil rights, that at least one incident occurred within the 300 day period, and thus that all of her claims are timely.

 A Title VII claim is time-barred when the plaintiff fails to file a timely charge of discrimination with the EEOC.

 
In a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief . . . such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice.

 42 U.S.C. 2000e-5(e)(1); see also Butts v. City of New York Dep't. of Hous., 990 F.2d 1397, 1401 (2d Cir. 1993). Thus, incidents of discrimination that occurred during the 300 days immediately prior to the filing of the EEOC charge ...


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