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LATHROP v. ONONDAGA COUNTY

September 12, 2002

CHARLENE LATHROP, PLAINTIFF,
V.
ONONDAGA COUNTY; ONONDAGA COMMUNITY COLLEGE; PUBLIC SAFETY INSTITUTE; CENTRAL NEW YORK POLICE ACADEMY; RICHARD FLANAGAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE PUBLIC SAFETY INSTITUTE AND CENTRAL NEW YORK POLICE ACADEMY; AND KATHERINE LAPP, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE STATE OF NEW YORK DIVISION OF CRIMINAL JUSTICE SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Chief Judge.

  MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

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 police officer.

Presently before the Court are DCJS's motion for summary judgment and Plaintiffs cross-motion for partial summary judgment. The Court heard oral argument in support of, and in opposition to, these motions on June 14, 2002. At that time, the Court granted DCJS's motion for summary judgment with respect to Plaintiffs Fourteenth Amendment due process and equal protection claims and reserved decision with respect to Plaintiff's First Amendment retaliation claim. The following constitutes the Court's written decision with respect to the remaining claim.

II. BACKGROUND

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.

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 Academy.

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 that

[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.


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