The opinion of the court was delivered by: Garaufis, United States District Judge
Plaintiff, Lorenzo Pugliese ("Pugliese" or "Plaintiff") filed the instant discrimination suit against his employer, defendant Long Island Rail Road Company ("LIRR"), as well as ticket clerk Richard Cole ("Cole"), station cleaner Chris Glaudino ("Glaudino"), Pugliese's former manager Nancy Greer ("Greer"), and LIRR employee Gerome Petronolia/Jerome Petronilia ("Petronilia"), individually and in their official capacities (collectively "Defendants"). Pugliese claims that Defendants engaged in a pattern and practice of discrimination on the basis of his sexual orientation as a homosexual male and a perception that Pugliese did not conform to the stereotypes of his gender, in violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution, and New York Human Rights Law. Specifically, Pugliese brings this lawsuit under 42 U.S.C. § 1983 ("§1983") and New York City Administrative Code Sec 8-107. (See Compl. 1-2.) The parties conducted discovery under the supervision of Magistrate Judge Marilyn Go. Defendants LIRR, Petronolia, and Greer ("moving Defendants"), subsequently moved for summary judgment as to each of Pugliese's claims. (See Mem. L. Support Def's. Mot. Summary Judgment ("Defs. Mot.").) For the reasons set forth below, moving Defendants' summary judgment is GRANTED in part and DENIED in part. All claims against defendants Cole and Glaudino are dismissed without prejudice as they were never served with complaint and summons in this lawsuit.
The following facts are presented in the light most favorable to the plaintiff, as is required in a motion for summary judgment. See Brennan v. Metro. Opera Assn Inc., 192 F.3d 310, 316 (2d Cir. 1999); Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999). Pugliese began working for the LIRR in July 1979 and was promoted through the years until he became a Ticket Agent in 2000, a supervisory position. (Defs. Statement Material Facts Pursuant to R. 56.1 ("Defs. SMF") ¶ 1,2,4.)
A. 1996 Incident: Bobby Wright
Plaintiff first experienced anti-gay remarks on the job in 1996, while working as a ticket clerk in Jamaica station. (Pugliese Aff.) The derogatory comments were made by a supervisor Bobby Wright, after attempts by Mr. Wright to "get personal" were rebuked by Pugliese. (Id.) Pugliese reported these comments to Nancy Greer and Mercedes Commodore. Mercedes Commodore later told Pugliese that Bobby Wright would be required to attend sensitivity classes; however, it is not clear if he ever did so. Soon after this incident, plaintiff voluntarily transferred out of that station.
B. November 2000 Incident: Robert Cole
The next incident occurred in November 2000, while Mr. Pugliese was a ticket agent at Flatbush Avenue station. Around October 31, 2000, he reported ticket clerk Richard Cole for violations of LIRR policy, including that Cole left the ticket office unalarmed, during which time the ticket case was open, the safe was open, and cash had been left in the money drawer. (Pugliese Dep. 18-20.) Cole was eventually disciplined, including six months suspension without pay. (Defs. SMF ¶ 11.) Within three days of the original incident, Metropolitan Transit Authority ("MTA") Police Officer Al Ramos ("Officer Ramos") reported that Cole had asked him to say that Pugliese sexually harassed Cole. (Pugliese Dep. 20-21.) Cole reportedly asked Officer Ramos to say that Pugliese spoke of wanting to "fuck [Cole] in the ass" and that Ramos had observed Pugliese massaging Cole's shoulders and buttocks. (Id.) Pugliese was further told by supervisors at Penn Station that Cole had solicited employees there to report that they were harassed by Pugliese. Pugliese reported to his supervisor, Nancy Greer, his belief that Cole was planning to bring false sexual harassment claims against him. The time line is unclear from the record, but Plaintiff alleges that Greer failed to promptly contact appropriate personnel or to investigate, as appears to be required under LIRR policy. (See Defs. SMF ¶ 15; Greer Dep. 46)..
On November 21, 2000, Richard Cole made a complaint to Diversity Management that Pugliese had inappropriately touched him. (Commodore Aff. ¶ 9.) Cole's complaint was investigated by Greer and Sandy Sperry ("Sperry"), the Assistant Manager for Diversity. Pugliese claims that in separate meetings with both Sperry and with Greer, each told him that they did not believe Cole. (Pugliese Aff. ¶¶ 22-23; Pugliese Dep. 53-54.) Greer told Pugliese that supervisors are "in the firing line" and that he should "just let it go." (Id.) By letter dated December 1, 2000, Sperry informed Cole that his allegations of sexual harassment had not been substantiated. (Defs. SMF at 17.) Defendants claim that Sperry and Greer also found no proof that Cole made false allegations. (Id. at 19.)
C. January 2001: Christopher Glaudino
The next incident occurred with respect to station cleaner Christopher Glaudino, beginning in December 2000. Glaudino became friendly with Pugliese during that time, buying him lunch at least four times. (Pugliese. Aff. ¶ 27.) During a conversation about a female co-worker, Glaudino told Pugliese that he had a "nine inch cock" and showed it to Pugliese through his pants. (Pugliese Aff. ¶ 31.) Pugliese reportedly called Glaudino "stupid" and asked him to leave. (Id.) When Glaudino came into the office on his relief day Pugliese again asked Glaudino to leave. (Id. at 32.) Other employees reported to Pugliese that Glaudino felt hurt because of this. (Id.)
On January 8, 2001, Christopher Glaudino made a complaint to Diversity Management that Pugliese had sexually harassed him. (Defs. SMF at 20.) Glaudino alleged that Pugliese had asked to see Glaudino's penis, rubbed his shoulders, and pinched his cheek in November 2000. (Defs. SMF at 20.) Glaudino also alleged that plaintiff offered him four hours of overtime to see Glaudino's penis, and that in December 2000, Pugliese offered to give Glaudino a computer if he would scan a picture of his penis and give it to Pugliese. Glaudino also made allegations that after he declined Pugliese's advances, Pugliese was disrespectful to him and told him to look for another job. (Id.) Greer and Sperry conducted an investigation of Glaudino's complaint. (Defs. SMF.) Pugliese claims that Sperry and Greer told him their conclusion was that Glaudino was unsure of his sexuality, felt rejected by Pugliese, and that is why he brought claims against Pugliese. (Pugliese Dep. 63-64.) In writing, they concluded that there was no evidence to substantiate either Glaudino's or Pugliese's complaints. (Id.)
D. May 2001: Jerome Petronilia
A final incident took place with respect to LIRR employee Jerome Petronilia. On May 3, 2001, a station cleaner told Pugliese that Petronilia and others referred to him as a "fucking faggot" and a "queer" and claimed that he entered the men's locker room in order to watch them change their clothing. (Pugliese Aff. ¶ 42.) The station cleaner, Larry House, reported to Pugliese that Petronilia had told people not to listen to Pugliese. (Pugliese Dep. 72.) Two other station cleaners also told Pugliese that Petronilia was making disparaging statements about him regarding his sexual orientation. (Pugliese Aff. ¶ 43.) Pugliese reported this to manager Roe Mitchell and asked Larry House also to report it to Mitchell. (Pugliese Dep. 80.) Roe Mitchell reportedly told Pugliese to approach Petronilia himself. Although Pugliese told Greer about the issue, he did not file a written complaint with Greer or with the Diversity committee, because he had not been satisfied with how they had dealt with his past complaints. (Id. 89.) Instead Pugliese filed a grievance with the union. Shortly thereafter, Pugliese used his seniority to transfer to Syosset station. Pugliese alleges that he made less money after the switch.
A motion for summary judgment should be granted only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of establishing the absence of a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has met this burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A fact is material if it "might affect the outcome of the suit under the governing law." Holtz v. Rockefeller & Co., Inc., 258 F. 3d 62, 69 (2d Cir. 2001) (quoting Anderson, 477 U.S. at 248). A genuine issue is presented where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118,121 (2d Cir. 1990) (internal quotations and citations omitted); see Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the opponent can only create a genuine issue of material fact by citing competent, admissible evidence. Glasso v. Eisman, Zucker, Klein & Ruttenberg, 310 F. Supp. 2d 569, 574 (S.D.N.Y. 2004) (citing Sarno v. Douglas Elliman-Gibbons & Ives, 183 F.3d 155, 160 (2d Cir. 1999)).
When deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson, 477 U.S. at 255; Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). Furthermore, "[i]n determining whether issues of material fact exist in a discrimination case where the employer's state of mind is at issue, we affirm sparingly a grant of summary judgment because careful scrutiny of the factual allegations may reveal circumstantial evidence to support the required inference of discrimination." Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d 121, 124 (2d Cir. 2005) (internal citations omitted).
Moving Defendants, LIRR, Petronilia and Greer, contend that a summary judgment should be granted because there is no municipal liability or individual liability under § 1983, because plaintiff fails to show a violation of his equal protection rights, and because plaintiff's state claims are preempted and fail to demonstrate an adverse employment action. I will address each of these arguments in turn.
A. Municipal Liability Under § 1983
Municipalities have been considered "persons" for the purpose of § 1983 liability since the Supreme Court reversed its prior prohibition on municipal liability in Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658 (1978). Monell established that municipalities and other local government units could be sued directly under § 1983, as long as they were only held responsible for official policy and not under a respondeat superior theory. Id. at 690-94. "Official policy" can be found one of three ways. First, if acts are "officially sanctioned or ordered" by the municipality, it can be held responsible. City of St. Louis v. Praprotnik, 485 US 112, 123 (1988) (internal citations omitted). Second, a "plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a 'custom or usage' with the force of law." Id. at 127 (internal citations omitted). Finally, municipalities can be held responsible for unconstitutional actions by individuals with "final policymaking authority" as defined by state law. Id. at 123.
There is no evidence on the record suggesting that either of the first two definitions of official policy are relevant in this case. To the contrary, nondiscrimination is LIRR's stated, official policy. (Defs. SMF ¶ 15.) Furthermore, there has been no evidence presented that there is a widespread practice of ignoring or subverting legitimate discrimination and harassment claims. Contrary to Pugliese's suggestion, evidence that his managers ignored his complaints on three occasions does not establish that such actions were widespread policy throughout the LIRR.
Nonetheless, whether Nancy Greer acted as a final policymaking authority in dealing with Pugliese's complaints is a closer call. "An official has final authority if his decisions, at the time they are made, for practical or legal reasons constitute the municipality's final decisions." Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003) (citing Rookard v. Health & Hosps. Corp. 710 F.2d 41, 45 (2d Cir. 1983)). Discretionary acts by a supervisor are not sufficient; a plaintiff must show that the individual has final authority over significant matters involving the exercise of discretion. Rumala v. New York City Transit Auth., 02 CV 3828, 2005 U.S. Dist. LEXIS 19766 (E.D.N.Y. Aug. 26, 2005). According to information provided by the LIRR, Nancy Greer is the Terminal Manager in Jamaica/Flatbush Avenue Stations. (Reply Declaration Lundin ("Defs. Reply Decl.") Ex. B, Subpart C at 1.) She answers to the Assistant General Manager of Passenger Services, who in turn answers to the General Manager of Passenger Services. (Id. at 3; Wedley Aff. ¶ 3.) The LIRR's Job Questionnaire for Greer's position states that she has "complete authority" for making decisions related to:
Selection of new hires, appointed positions, disqualification of employees, discipline of employees to include dismissal; overtime, staffing, employee and supervisory coverage for events and holidays and unusual capital/engineering programs, scheduling and assignment of resources, determining priorities of cleaning resources commitment including timing and frequency, invoice approval, exceptions to refund policy, delegation of authority, evaluation of supervisory personnel, operating budget, internal controls, enforcement of rules/regulations of tenants, approval of concessions and public displays, access desk staffing. (Defs. Reply Decl. Ex. B, Subpart C at 4 (emphasis added).) In contrast, Greer's position must refer decisions about corporate policy, final budget, labor agreements, and local police involvement to others for approval. (Id.)
The Second Circuit has explained that "[w]here an official has final authority over significant matters involving the exercise of discretion, the choices he makes represent government policy. An official has final authority if his decisions, at the time they are made, for practical or legal reasons constitute the municipality's final decisions." Rookard, 710 F.2d at 4. Fred Wedley, the General Manager of the Department of Passenger Services suggests that since Greer must refer decisions about corporate policy to senior managers, she is not a final policymaker for the LIRR. (See Wedley Aff.) It is not required, however, for an individual to have final policymaking authority over all decisions. Rather, an official has the requisite "final policymaking authority" to support a Monell claim if his or her actions constitute a final action on the part of the municipality. See Jeffes v. Barnes, 208 F.3d 49, 56 (2d. Cir. 2000) (Defendant "need not be a municipal policymaker for all purposes. Rather, with respect to the conduct challenged, he must be responsible under state law for making policy in that area of the [municipality's] business.") (internal citations omitted); McMillian v. Monroe County, Ala., 520 U.S. 781, 785 (1997) ("Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue."). For example, while a police sergeant's actions taken after answering a 911 call were considered too discretionary to constitute final policymaking authority (Anthony, 339 F.3d at 139-40), a principal charged with failing to investigate students' false sexual harassment complaint against a homosexual teacher has been considered to be a final policymaker for the School District. Lovell v. Comsewogue Sch.l Dist., 214 F. Supp. 2d 319, 324 (E.D.N.Y. 2002). The relevant standard is one of state law. McMillan, 520 U.S. at 786.*fn1
In this case, the most compelling evidence we have of what the LIRR intended for Greer's role is the job description as provided by the LIRR. Greer's job description states that she has "complete authority" for making decisions regarding "discipline of employees to include dismissal." (Defs. Reply Decl. Ex. B, Subpart C at 4.) Greer had authority to investigate claims of discrimination or harassment, to choose discipline based on her findings, and to dismiss employees. There is no suggestion that those decisions had to be approved by others or that there was an official appeal procedure. It is less clear whether Greer has final policymaking authority directly in investigations of discrimination, since that responsibility is shared with the diversity personnel. However, LIRR policy demonstrates that Greer has final policymaking authority for actions involving discipline, including the results of investigations of discrimination. Examining the facts in the light most favorable to the Plaintiff, I find that LIRR has municipal liability and the motion is denied.
B. Individual Liability Under § 1983
Defendants Greer and Petronilia argue that they should not be held individually liable under § 1983 because either they are protected by qualified immunity ...