The opinion of the court was delivered by: Scullin, Chief Judge.
MEMORANDUM-DECISION AND ORDER
The only remaining claims in this action are Plaintiffs eighth
and tenth causes of action, which allege that Defendants
discriminated against her on the basis of her gender and
retaliated against her for filing a complaint of discrimination
with the New York Division of Human Rights ("DHR") and the Equal
Employment Opportunity Commission ("EEOC") in violation of her
First and Fourteenth Amendment rights.*fn1 Plaintiff seeks
prospective equitable relief from Defendant Katherine Lapp, in
her official capacity as Commissioner of the New York State
Division of Criminal Justice Services ("DCJS").*fn2
Specifically, Plaintiff requests that DCJS certify her as a
On December 23, 1996, Plaintiff was provisionally appointed a
police officer in the Village of Marcellus. A police officer
must complete an approved basic course for police officers
within one year of her appointment and obtain a certificate of
completion attesting to such completion from DCJS or forfeit her
provisional appointment and be precluded from permanent
appointment.*fn3 See N.Y. Gen. Mun. Law § 209-q(1); N.Y.
Comp.Codes R. & Regs. tit. 9, § 6020.7.
Plaintiff enrolled in and attended the Central New York Police
Academy ("Academy") from January until May 1997 in an effort to
complete the basic course and obtain certification from DCJS.
Plaintiff successfully completed all of the basic course
requirements except for the "defensive tactics" examination, the
final examination that the Academy administered as part of its
basic course. The defensive tactics test was comprised of six
scenarios of varying degrees of difficulty designed to evaluate
the proficiency of each candidate in defensive tactics.
When Plaintiff first took the defensive tactics examination in
May 1997, she successfully completed the first five scenarios
but not the sixth. As per Academy practice, all the candidates
who had failed the defensive tactics examination, including
Plaintiff, were provided with an opportunity to retake the
examination. Approximately one week after she first took the
examination, Plaintiff retook the test and once again failed.
By letter dated May 22, 1997, the Academy informed Plaintiff
that she could retest in defensive tactics at any time within
one year of her appointment date; i.e., by December 23, 1997.
See Affidavit of Richard A. Maroko, sworn to January 4, 2001
("Maroko Jan. Aff."), at Exh. "G." Plaintiff began training soon
after she received the letter with the intention of retesting.
However, by letter dated July 29, 1997, the Academy rescinded
its offer of retesting, expressly because Plaintiff had filed a
claim of discrimination against the Academy.*fn4 See Maroko
Jan. Aff. at Exh. "K." Specifically, the letter, which was
signed by Richard H. Flanagan, Director, Central New York Police
Academy, stated: "[m]y letter to you dated 22 May, 1997 offering
to retest [Plaintiff] is hereby rescinded. We will not retest
[Plaintiff] while this issue is in litigation. . . . While this
matter is in litigation, [Plaintiff] will not be admitted into
any courses offered by the Central New York Police Academy or
the Public Safety Institute." See id.*fn5 As a result of
this letter, Plaintiff was unable to schedule a retest and
complete the basic course within one year of her appointment.
On December 13, 1997, Chief of Police Lathrop, the Chief of
Police of the Village
of Marcellus and Plaintiffs husband, wrote to DCJS, seeking an
extension of time for Plaintiff to complete the basic course. He
explained that Plaintiff had experienced problems completing
defensive tactics and that he had talked to Sgt. Michael Pollman
at the Academy on December 11, 1997, who had informed him that
the Academy had "reevaluated other recruits on various tasks and
will do the same for [Plaintiff] as soon as she is ready." See
Affidavit of Harry Lathrop, sworn to January 4, 2001 ("H.
Lathrop Aff."), at Exh. "D." DCJS responded by letter dated
January 12, 1998. In that letter, Deputy Commissioner Burrell
rejected Plaintiffs request, stating that "[t]he circumstances
described in your letter cannot be considered exigent as defined
by the regulations for the Basic Course for Police Officers.
Accordingly, I am without regulatory authority to approve a time
extension for [Plaintiffs] basic training."*fn6 See Maroko
Jan. Aff. at Exh. "N" at 2.
Upon receiving Deputy Commissioner Burrell's response, Chief
Lathrop sent DCJS a second, supplemental request for an
extension dated January 15, 1998. In that letter, Chief Lathrop
stated that he believed that the circumstances surrounding
Plaintiffs failure to timely complete the basic course at the
Academy constituted exigent circumstances. He explained that
Plaintiff was unable to timely complete the basic course because
she "is in litigation with the academy and this is why `the
academy will not let her retest.'" See Maroko Jan. Aff. at
Exh. "O." Attached to this letter was Director Flanagan's July
29, 1997 letter, which stated that the Academy would not allow
Plaintiff to retest during the course of her litigation with the
Deputy Commissioner Burrell forwarded Chief Lathrop's letter
to Mr. Digman for a response. On January 27, 1998, Mr. Digman
wrote an internal memo regarding this letter, in which he stated
[a]pparently Chief Lathrop does not want to take "no"
for an answer. As you know, his wife wrote to us
several times in the past, rehashing the same old
arguments [regarding an unrelated Civil Service
issue]. We finally decided not to respond to her
anymore, we have not heard from her since. I think
that we should take the same approach with Chief
Lathrop because every time we respond to him we
invite another response. We have to draw the line
somewhere or we will have a pen pal for life.
See Maroko Jan. Aff. at Exh. "Q."
Apparently acting on this recommendation, DCJS did not respond
to Chief Lathrop's January 1998 letter.
Ten months later, Plaintiffs counsel, after consultation with
the Onondaga County Attorney's Office, sent a third letter to
DCJS dated October 22, 1998, supplementing the January 15, 1998
request, containing Director Flanagan's letter. See Maroko
Jan. Aff. at Exh. "S." The letter explained that Plaintiff and
the Academy had agreed to a retest to be administered by a
mutually agreeable examiner. See id. The letter also renewed
the request for an extension of time based upon the
circumstances surrounding Plaintiffs failure to timely complete
the basic course, specifically noting that Plaintiff alleged
that the recission of the opportunity to retest because of her
complaint of discrimination was unlawful retaliation. See id.