degree, are time barred. It is undisputed that many of the events that form the basis of plaintiff's claims occurred beyond the period encompassed by the applicable statute of limitations.
Plaintiff asserts that the statute of limitations should not bar her claims because the acts of discrimination of which she complains constitute a "continuing violation." See Annis v. County of Westchester, 136 F.3d 239, 1998 U.S. App. LEXIS 1449, 1998 WL 49317 (2d Cir. (N.Y.)) Riedinger v. D'Amicantino, 974 F. Supp. 322 (S.D.N.Y. 1997). "Where a continuing violation can be shown, the plaintiff is entitled to bring suit challenging all conduct that was a part of that violation, even conduct that occurred outside the limitations period." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).
Although discrete incidents of discrimination will not usually support a finding of a continuing violation, a continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice. Karen Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Cornwell, 23 F.3d at 704.
Plaintiff's allegations, if credited may be sufficient to constitute a discriminatory policy or practice. Plaintiff recounts a variety of potentially discriminatory actions that may be pervasive, numerous, and significant. For example, plaintiff describes several instances in which she was denied a promotion that went to a man who, at least based on objective criteria, was no more qualified than she. Plaintiff also describes enough incidents of sexual lewdness, pranks, and innuendo that a trier of fact could characterize the Department as a sufficiently hostile work environment to support a finding of sex discrimination.
The extent of the actions of which plaintiff complains might have been sufficient to put the Department on notice as to their existence. It is undisputed that the Department did not act in response to many of the events of which plaintiff complains. Indeed, many of the events of which plaintiff complains involved high ranking Department officials.
The defendants, of course, do offer non-discriminatory explanations for many of the actions or events of which plaintiff complains. For other events, the defendants attempt to minimize their significance. On this record, whether the complained of events are, singly or in combination, innocuous and innocent rather than discriminatory and ill-intentioned is a determination that can only be made on the basis of a more complete record. This issue can be revisited at the time of trial.
The doctrine of qualified immunity entitles public officers to be shielded from liability for damages unless their conduct violates clearly established constitutional rights of which a reasonable person would have known, Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996); Lennon v. Miller, 66 F.3d 416 (2d Cir. 1995); Zavaro v. Coughlin, 970 F.2d 1148, 1153 (2d Cir. 1992); Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991), or unless it was objectively unreasonable for them to believe that their acts did not violate those rights. Anderson v. Creighton, 483 U.S. 635, 638-639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994).
The right alleged to have been violated must be clearly established at a level of specificity such that "a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. To be deprived of the defense of qualified immunity, a public official must not simply violate plaintiff's rights; rather the violation of plaintiff's rights must be so clear that no reasonable public official could have believed that his actions did not violate plaintiff's rights. Anderson, 483 U.S. at 640.
The individual defendants in this case assert the defense of qualified immunity. The Court has reviewed the plaintiff's allegations and the materials submitted in connection with this motion for summary judgment and has concluded that defendants Fatigate, Craparo and Duncan have not established on the current record that they are entitled to qualified immunity. Each of these individuals took an active role in many of the events of which plaintiff complains. The same factual disputes that prevent summary judgment on plaintiff's substantive claims preclude a determination at this time as to whether they are entitled to qualified immunity. Defendant Blackwood, in contrast, was not directly involved in the events of which plaintiff complains. As mayor of the City of Mount Vernon, Blackwood took no actions that clearly violated plaintiff's constitutional rights. Therefore, the defense of qualified immunity is available at this time to Blackwood, but not to Fatigate, Craparo, or Duncan.
However, none of the individual defendants may be individually liable under Title VII. Title VII provides for employer liability but not for individual liability. Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995). In Tomka, the Second Circuit held that "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." Tomka, 66 F.3d at 1313. Thus, the Title VII claims against the individual defendants must be dismissed.
For the reasons stated, defendants' motion for summary judgment is granted in part and denied in part. Defendant Ronald Blackwood is entitled to qualified immunity. The Title VII claims are dismissed as to the individual defendants, namely Blackwood, Fatigate, Craparo, and Duncan. In all other respects, the defendants' motion is denied.
SO ORDERED :
Barrington D. Parker, Jr.
Dated: White Plains, New York
February 18, 1998
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