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CRIVERA v. CITY OF NEW YORK

February 23, 2004.

ELVA CRIVERA, Plaintiff, -against- THE CITY OF NEW YORK, DINO RUSSO, FRANK ALBERGO, KEVIN FARREL, and JOSEPH CRIVERA, Defendants


The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER

Plaintiff Elva Crivera ("E. Crivera") brings this action alleging sexual harassment, hosfile work environment, discrimination on the basis of gender, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,*fn1 and New York Executive Law section 296. She also alleges violations of 42 U.S.C. § 1983 predicated on rights protected by the First and Fourth Amendments, and a conspiracy to violate her civil rights pursuant to 42 U.S.C. § 1985. Finally, E. Crivera alleges a breach of an express and implied covenant of good faith and fair dealing under New York law. Defendants Dino Russo and Joseph Crivera ("J. Crivera") move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Page 2

BACKGROUND*fn2

  E. Crivera was first employed as a sanitation worker by New York City (the "City") on October 18, 1999. (Compl. ¶ 18.) On March 1, 2000, she was appointed to the position of Sanitation Police Officer after completing the required peace officer and firearms training. (Id.) E. Crivera was thereupon transferred to the City's sanitation police squad in Brooklyn. (Id.) All matters complained of in this action occurred in Brooklyn in the course of E. Crivera's employment. (Id. ¶ 22.) In March 2001, E. Crivera was promoted to Sanitation Police Sergeant; she was the first woman to ever hold that position and the only female sanitation police sergeant in the City. (Id. ¶ 20.) E. Crivera performed her duties in an acceptable, professional, and highly competent manner, (Id. ¶ 21.)

  J. Crivera was the then — estranged husband of E. Crivera; though married, the two were separated. (Id. ¶ 24.) Russo was one of E. Crivera's supervisors, who had the authority to transfer, demote, and terminate E. Crivera's employment. (Id. ¶ 25.) E. Crivera had, and continues to have, as of the date of the complaint, an intimate relationship with nonparty John Leddy, a male sanitation police sergeant employed by the City, (Id. ¶ 27.)

  From May 2001 through April 2002, in the course of his employment with the City, Russo — on an almost daily basis — threatened to either terminate E. Crivera's employment or demote or transfer her out of the sanitation police force unless E. Crivera ended her relationship with Leddy. (Id. ¶ 29.) At times, Russo demanded not only that E. Crivera end her Page 3 relationship with Leddy, but that she develop an intimate relationship with Russo himself. (See id ¶¶ 30, 40.)

  On May 29, 2001, while E. Crivera was in the field on a job-related assignment, Russo visited her in his official vehicle. (Id. ¶ 31.) Russo called E. Crivera over to his vehicle, and when she approached, Russo pulled her toward the vehicle's window by her hair. (Id.) Twice in 2001, once in July and once in August, Russo summoned E. Crivera into a City role — call room where he yelled at her to end her relationship and association with Leddy. (Id. ¶ 32; see also id. ¶ 36 (describing a similar incident).) When E. Crivera tried to leave the room, Russo pushed her back inside and kept her there against her will. (Id.) E. Crivera alleges other instances of Russo demanding that she end her relationship with Leddy. (E.g., id. ¶¶ 33-34, 38, 45.)

  Sometime in July 2001, in the outer office of a Lieutenant Cunningham, Russo kicked E. Crivera and pushed her onto a desk while demanding that she end her relationship with Leddy. (Id. ¶ 35.) One Sunday that same July, Russo followed E, Crivera on her day off. (Id. ¶ 37.) On that day, E. Crivera was biking with Leddy when she saw Russo sitting in his car in the same parking lot where E. Crivera had parked her own car. (Id.) When Russo saw that E. Crivera was with Leddy, he told her that he had been waiting to see who she was with, and then drove away. (Id.) The next day at work, Russo again told E, Crivera that she would be giving up her career as a sanitation police officer because Russo was in charge and would not permit her to associate with Leddy. (Id.)

  In August 2001, Russo physically forced E. Crivera into the chief's office (the chief was apparently not inside at the time) where he threatened to choke her. (Id. ¶ 39.) He Page 4 again demanded that E. Crivera end her relationship with Leddy or quit the sanitation police force. (Id.)

  On September 2, 2001, J. Crivera filed a written complaint with the New York City Police Department alleging that E. Crivera had harassed him. (Id. ¶ 41.) When he filed the complaint, however, J. Crivera told the officer preparing the complaint that he did not want to pursue it any further. (Id. ¶ 41.) The next day, September 3, Russo went to E. Crivera's brother's home and told her brother to tell E. Crivera that, in light of the harassment complaint filed by J. Crivera, E. Crivera had to surrender her firearm. (Id. ¶ 42.) Later that day, Russo told E. Crivera that he would allow her to continue working as a sanitation police officer, albeit without a gun, if she ended her relationship with Leddy. (Id. ¶ 43.)

  Also on September 3, 2001, Russo forced E. Crivera to take vacation so that she could think about whether or not to end her relationship with Leddy. (Id. ¶ 45.) E. Crivera therefore took vacation from September 3, 2001 through September 17, 2001. (Id. ¶ 46.) During this vacation, Russo paged E. Crivera every day and left messages telling her that she could continue as a sanitation police officer only if she ended any association with Leddy. (Id.) On September 5, 2001, Russo went to E. Crivera's home and harassed her. (Id. ¶ 47.) E. Crivera therefore left her home with her niece and went to her niece's home. (Id.) Russo followed E. Crivera to her niece's home and continued to harass her there by telling her to end her relationship with Leddy. (Id.: see also id. ¶ 46.)

  On September 6, 2001, the City placed E. Crivera on "modified duty" until such time as the New York Police Department and Sanitation Police investigated J. Crivera's complaint. (Id. ¶ 48.) On September 24, 2001, the defendants demoted E. Crivera from the Page 5 Sanitation Police Enforcement Unit to the Auxiliary Field Force to work as a garbage collector. (Id. ¶ 49.) Two days later, on September 26, Russo converted E. Crivera's locker room — the only locker room available for female employees — into an office, while locker rooms for male employees remained unaffected. (Id. ¶ 50.) E. Crivera therefore had nowhere to change into and out of her uniform and store her property, a benefit the male employees continued to enjoy. (Id.)

  On December 3, 2001, E. Crivera reported Russo's conduct "to the EEO for City of New York Department of Sanitation" alleging harassment and discrimination on the basis of gender. (Id. ¶ 51.) E. Crivera filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on March 6, 2002, alleging sex discrimination and harassment, (Id. ¶ 52.) In early April 2002, E. Crivera was transferred back to the sanitation police, where the defendants retaliated against her for filing these complaints. (Id. ¶ 53.) Specifically, the defendants created "an intimidating, abusive, and hosfile work environment in that they incited, promoted, maintained, and permitted the ostracism and verbal abuse of the plaintiff by her co-workers, including supervisors, all of which are men." (Id.) The defendants also refused to return to E. Crivera her bulletproof vest, which had been taken from her prior to her transfer. (Id.) Instead, the defendants forced E. Crivera to wear an ill-fitting bulletproof vest designed for a man. Furthermore, when the defendants returned E. Crivera's firearm to her, they issued her only sixteen rounds of ammunition, refusing to provide her with the full forty-six rounds that she is required to have pursuant to a New York City Police Firearms directive. (Id.) In these ways — providing her with an ill-fitting bulletproof vest and too little ammunition — the defendants exposed E. Crivera to serious harm or death. (Id. ¶ 53.) Page 6

  Finally, E. Crivera alleges that, by these acts, Russo and J. Crivera forced her to resign from her employment ...


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