The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Heather Wagner ("Wagner" or "plaintiff") asserts sexual harassment and unlawful discrimination claims pursuant to 42 U.S.C. §§ 1983 and 1988, as well as pendent state law claims pursuant to the New York State Human Rights Law ("NYSHRL"), New York Executive Law § 296, the New York State Constitution, article 1, section 11 and New York Civil Rights Law § 40-c, arising out of the events leading up to, and including, the termination of her employment with the City of Albany (the "City"). Pursuant to Fed. R. Civ. P. 56, and an additional claim of qualified immunity, defendants Todd Burnham ("Burnham") and the City (collectively referred to in this opinion as "the defendants") have moved for summary judgment on all claims against them. Plaintiff opposes.
Oral argument was heard on July 22, 2005, in Albany, New York. Decision was reserved.
Plaintiff submitted an employment application for a job opening with the City's Community Aid department in January 2002. (Docket No. 22, Defs.' Statement of Material Facts ¶ 4) ("DSMF ¶ __".) She was directed to contact Burnham, Assistant Corporation Counsel for the City, regarding the status of her application, and she did so numerous times between January and March 2002, although plaintiff and defendants dispute the number of telephone calls. (Docket No. 27, Pl.'s Rule 7.1 Statement of Material Facts ¶¶ 4-5 ("PSMF ¶ __"); DSMF ¶ 5.) The parties dispute the nature of these calls, as Wagner contends (and defendants deny) that in addition to informing her about her application status, Burnham asked questions about her personal life, which made her uncomfortable. (PSMF ¶ 8; DSMF ¶¶ 7-9.) She did not tell Burnham that his questions made her uncomfortable, as she did not wish to develop a "bad relationship" with an employee of her potential employer. (PSMF ¶ 8.)
In March 2002, plaintiff was interviewed for the position of Community Aid with the City; both defendant Burnham and the director of the Building and Codes Department for the City, Valerie Scott ("Scott"), were present. (DSMF ¶¶ 11-12.) She believed that she was interviewing for a position as Burnham's personal secretary, and that if she were hired, both Scott and Burnham would be her supervisors. (PSMF ¶¶ 11, 14.) Defendants deny that they ever indicated to plaintiff that Burnham would be her supervisor. (DSMF ¶ 14.) Wagner contends that during her interview, conducted primarily by Scott, Burnham made her uncomfortable by repeatedly "looking her up and down." (PSMF ¶ 15.) She also alleges, though defendants deny, that when Burnham walked her to the door at the conclusion of the interview, he made several sexually inappropriate comments regarding her appearance. (PSMF ¶¶ 16-17; DSMF ¶¶ 16-17.)
From the date of her March 2002 interview to June 17, 2002, the date she was notified that she was hired, plaintiff contacted Burnham at least ten more times concerning the position with the City. (DSMF ¶ 25.) During that same time period, Burnham visited her twice at the tanning salon where she was volunteering. (DSMF ¶ 28; PSMF ¶ 28.) Wagner alleges, and defendants deny, that during his first visit to the salon, Burnham flirted with her and made sexually inappropriate comments regarding her appearance. (Docket No. 27, Pl.'s Statement of Genuine Issues of Material Fact Precluding Summ J. for Defs. ¶¶ 97-100 ("PSGIMF ¶ __"); Docket No. 28, Defs.' Reply Statement of Material Facts ¶¶ 97-100 ("DRSMF ¶ __".)) On his second visit on June 17, 2002, Burnham wished her a happy birthday and informed her that the position with the City was hers. (DSMF ¶ 29.)
Wagner began her employment with the City on June 21, 2002, as a probationary employee. Id. ¶ 30. Her desk was located in close proximity to Burnham's (DSMF ¶ 13), as her job was to act as an assistant to him and, when necessary, to Scott (PSGIMF ¶¶ 57, 115). Burnham was away from the office during the first week of plaintiff's employment, but she alleges that upon his return, he resumed his sexual remarks, which continued to make her uncomfortable. (DSMF ¶¶ 34-35.) She claims that he addressed her as "sweetheart," "honey," or "hun," (PSGIMF ¶¶ 126, 131), and at times, spoke about various parts of his body in front of her (DSMF ¶ 36). Defendants deny that Burnham ever spoke about his anatomy with Wagner. (DRSMF ¶ 131.) Plaintiff also claims, though defendants deny, that on one occasion, Burnham suggested that she should unbutton some of the buttons on her sweater. (PSGIMF ¶ 130; DRSMF ¶ 130.) Additionally, she states, and defendants deny, that Burnham questioned her about her boyfriend on several occasions, and suggested that she "get rid" of him. (Docket No. 1, Complaint ¶¶ 28-29 ("Compl. ¶ __"); DRSMF ¶ 136.) She also maintains, and defendants dispute, that Burnham suggested that the two of them (Wagner and Burnham) should get together outside of work, and if they did, there "would be no strings attached." (PSGIMF ¶¶ 139-142; Compl. ¶¶ 31-34; DRSMF ¶ 136.)
Approximately three weeks into her employment with the City, Wagner was relocated to the public area of the building and relieved of her duties of assisting Burnham. (Compl. ¶ 35; DSMF ¶ 47.) Defendants claim that because of issues with plaintiff's work product, Scott made the decision to transfer her to the public area to utilize her people skills and her "sunny" disposition. (DSMF ¶ 47; PSGIMF ¶ 169.) Plaintiff, however, contends that the transfer was the result of her refusal to get together with Burnham outside of work; she alleges that she was transferred only one day after she refused to let him "get to know her better," and she argues that in retaliation, Burnham complained to Scott about her, which resulted in her transfer. (PSGIMF ¶¶ 164, 173.) This transfer did not result in a change of title or salary. (DSMF ¶ 48.)
On or about the third week of July 2002, Wagner states that while she was delivering a telephone message to defendant Burnham, he asked her if she had any single friends. (DSMF ¶ 52; PSMF ¶ 52.) She gave him the telephone number of her best friend, Lisa Hockler ("Hockler"), a bartender at a local establishment. (Compl. ¶ 36; DSMF ¶ 53.) The Friday of that week, Burnham, Scott, and Dan Sherman ("Sherman"), another City employee, went to Hockler's place of employment for happy hour, where Burnham introduced himself to Hockler. (DSMF ¶ 55.) He later made an extremely offensive sexual suggestion to Hockler, which was overheard by Sherman. (PSGIMF ¶¶ 193-94.)*fn1 Shortly thereafter, Burnham left the bar. (PSGIMF ¶ 208.)
Approximately fifteen minutes after Burnham left, Hockler spoke with Wagner, who was not at the establishment to witness the above exchange, to question why she would send Burnham to see her and to tell her what Burnham had said. Id. ¶ 205. After speaking with Hockler, Wagner called Scott on Scott's cellular telephone to complain about Burnham's conduct. (See DSMF ¶ 62.) She contends, though defendants dispute, that she complained about Burnham's comments to Hockler and referred to his actions as sexual harassment. (PSGIMF ¶ 211; DRSMF ¶ 211.) Specifically, Wagner states that she told Scott, ". . . if this isn't sexual harassment, then what is. And this isn't the first time." (Docket No. 22, Ex. E, Wagner Dep. at 197.) Throughout the conversation, Wagner was upset and crying. (PSGIMF ¶¶ 213-14.)
Scott called Burnham on his cellular telephone to tell him that plaintiff had called her and had been "laughing" about his comment to Hockler. Id. ¶ 222. On the following Monday, Scott again spoke with him regarding the incident, but did not consider the conversation to be disciplinary in nature. Id. ¶ 223. Plaintiff herself did not approach Burnham about the incident. Id. ¶ 224. Later that week, however, she claims, though defendants deny, that Burnham once again proposed that they develop a relationship outside of work and questioned why she was being "difficult;" she responded by saying that she was "tired of this shit." Id. ¶ 226; see also Compl. ¶ 48; DRSMF ¶ 226. On August 2, 2002, approximately one week after the incident between Burnham and Hockler, and a few days after Wagner's alleged rebuff of his advances, Burnham fired Wagner by handing her a letter, signed and drafted by him. (Compl. ¶¶ 49-50; PSGIMF ¶ 257.)
The facts of the termination of plaintiff's employment are disputed. Plaintiff contends that she was fired because she refused to submit to Burnham's sexual advances. (See generally Compl. ¶¶ 57-61; 63; 72.) Defendants, however, contend that they had legitimate reasons for firing Wagner. In addition to her poor work product noted above, defendants claim that she was emotionally unstable and would make personal phone calls during working hours that would often result in plaintiff crying or fighting with the person on the other end of the line. (DSMF ¶¶ 66-67.) They claim that other employees complained to Scott about these personal telephone calls. Id. ¶ 68. Defendants also state that Wagner, a non-lawyer, gave incorrect legal advice to a landlord, and that she was inappropriate when dealing with customers and/or other City employees. Id. ¶¶ 69-70. However, there are no written evaluations of her work to substantiate these claims. (PSGIMF ¶ 157.) Defendants maintain that these issues prompted her termination, and that Scott and Public Safety Commissioner John Nielsen, not defendant Burnham, made the decision to fire her. (DSMF ¶ 72.) According to defendants, all letters of termination are delivered by members of the Corporation Counsel, and due to his position in that office, Scott asked Burnham to draft and deliver Wagner's letter of termination. Id. ¶¶ 74-77.
All tolled, plaintiff was employed by defendants for six weeks. During that time, she was given a copy of the City's Personnel Policy & Procedures Manual, which contains the City's sexual harassment policy. (DSMF ¶¶ 39-41.) Wagner admits that she was familiar with the policy and claims that her telephone call was a complaint of sexual harassment. (DSMF ¶ 42; PSGIMF ¶¶ 42-43.) Defendants dispute and claim that she never informed anyone at the City about the alleged harassment, which precluded defendants from investigating the matter and taking further action, if necessary. (DSMF ¶ 43.)
A. Summary Judgment Standard
When considering a motion for summary judgment, evidence is viewed in the light most favorable to the non-moving party, and all real inferences are drawn in her favor. Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002). It is well settled that summary judgment must be granted only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 436 (2d Cir. 1999). An issue is "genuine" if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, 477 U.S. at 248-49.
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact, as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the party opposing the motion for summary judgment must produce specific evidence establishing the existence of a genuine factual dispute that a reasonable jury could find in its favor. Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 587. It cannot rest upon "mere allegations or denials" asserted in its pleadings. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1999).
To withstand a summary judgment motion, sufficient evidence must exist upon which reasonable factfinders could resolve the issue in favor of the non-movant. Liberty Lobby, 477 U.S. at 248-49; Matsushita, 475 U.S. at 587. Thus, summary judgment is proper where there is "little or no evidence . . . in support of the non-moving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).
B. Sexual Discrimination Claims
Wagner contends that she was deprived of her right to equal protection of the laws under the Fourteenth Amendment of the United States Constitution and the New York State Constitution, specifically, her right to be protected from sex discrimination in the terms and conditions of public employment. She alleges that both Burnham's actions, and the City's failure to take action in response to her complaint of sexual harassment, violated her right to be free from sexual harassment - both quid pro quo and hostile work environment - and retaliation in the terms and conditions of her employment.
Sexual harassment in the workplace is actionable under § 1983 as a violation of the Fourteenth Amendment right to Equal Protection. Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994). "Individuals have a clear right, protected by the Fourteenth Amendment, to be free from discrimination on the basis of sex in public employment." Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 117 (2d Cir. 2004) (citing Davis v. Passman, 442 U.S. 228, 234-35 (1979); Rodriguez v. Bd. of Educ., 620 F.2d 362, 366 (2d Cir. 1980)).
To survive a summary judgment motion on her § 1983 sexual harassment claims, Wagner must set forth evidence that (1) Burnham "was acting 'under color of state law' at the time he committed the conduct complained of, and (2) his conduct deprived her of "'rights, privileges or immunities secured by the Constitution or laws of the United States."'" Hayut v. State Univ. of New York, 352 F.3d 733, 743-44 (2d Cir. 2003) (quoting Greenwich Citizens Comm., Inc. v. Counties of Warren & Washington Indus. Dev. Agency, 77 F.3d 26, 29-30 (2d Cir. 1996) (quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981))).
1. Claims Against Defendant Burnham
Defendant Burnham seeks summary judgment dismissing plaintiff's § 1983 sexual harassment claims against him; in addition to denying that he engaged in any behavior towards the plaintiff that could be classified as sexual harassment, he asserts that he was not her supervisor and had no authority to adversely affect her employment with the City.
Generally, under § 1983 analysis, "state employment is . . . sufficient to render the defendant a state actor." West v. Atkins, 487 U.S. 42, 49 (1988); see also Patterson v. County of Oneida, New York, 375 F.3d 206, 230 (2d Cir. 2004). In a § 1983 suit, "a defendant necessarily 'acts under color of state law when he abuses the position given to him by the State.'" Hayut, 352 F.3d at 744 (quoting West, 487 U.S. at 50). Thus, "a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." West, 487 U.S. at 50. However, "[m]ere employment by a state or municipality does not automatically mean that a defendant's actions are taken under the color of state law." Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (citing Polk County v. Dodson, 454 U.S. 312, 319-320 (1981)).
Here, when looking at the evidence most favorable to the plaintiff, it is apparent that Burnham was acting "under color of state law" when the alleged sexual harassment occurred. While defendants dispute whether Burnham was Wagner's supervisor, he did have the power and authority, because of his position as Assistant Corporation Counsel, to assign her everyday job tasks. It was Burnham that plaintiff was told to, and did, contact regarding the possible employment. It was Burnham who kept her up-to-date on the status of the position. It was Burnham who first informed her that she had been hired. And it was Burnham who ultimately informed her that she was fired.
Plaintiff testified that the alleged harassment occurred both before and during her employment with the City, both inside and outside of the workplace. She stated that she did not say anything to stop the harassing behavior before she was employed with the City, because "she did not want to have a bad relationship with a person for whom she hoped to work," and she did not report the continuing harassment after she was employed "because she did not know if she would be believed and because she did not know if such a complaint would adversely effect [sic] her job." (PSGIMF ¶¶ 67, 143.) Without the authority provided to him by the City, Burnham ...