The opinion of the court was delivered by: Theodore H. Katz, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Azariah Richardson claims that while he was seventeen years old and under the supervision of the New York City Department of Probation ("DOP"), his probation officer coerced him into engaging in several sexual acts. Plaintiff asserts claims against the City of New York ("the City") under 42 U.S.C. § 1983, for failing to properly train and supervise former New York City Probation Officer Nicole Waite ("Waite"), and for common law negligence. Plaintiff further seeks to hold the City vicariously liable for the alleged assault and battery by Waite. As to Defendant Waite, Plaintiff asserts a claim against her, under 42 U.S.C. § 1983, for violating his substantive due process rights, and also asserts state common law claims for assault, battery and infliction of emotional distress.*fn1
The parties consented to trial before this Court pursuant to 28 U.S.C. § 636(c). Presently before the Court are Defendants' Motions for Summary Judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants Defendant New York City's motion for summary judgment, and denies Defendant Waite's motion for summary judgment.
On April 29, 2003, Plaintiff pled guilty to Criminal Possession of Marijuana in the Fifth Degree, in violation of New York Penal Law § 221.10. (See New York City Department of Probation Court Order for Investigation and Report, dated Apr. 29, 2003, attached as Exhibit ("Ex.") A to Declaration of Hillary A. Frommer, dated June 2, 2006 ("Frommer Decl.").) The Criminal Court set a sentencing date of June 10, 2003 and, pending the results of a pre-sentence investigation, promised Plaintiff a sentence of three days of community service and, if found eligible, Youthful Offender status.*fn2 (See id.) The court ordered Plaintiff to report to the DOP for a pre-sentence investigation to determine, inter alia, whether he was entitled to Youthful Offender status.*fn3 (See Deposition of Azariah Richardson, dated Dec. 7, 2005, Dec. 15, 2005 and March 23, 2006 ("Richardson Dep."), at 27.)*fn4 Plaintiff went directly from court to the DOP, where Waite was assigned to Plaintiff's case. (See id. at 27-28.)*fn5
Plaintiff claims that over the course of the following month, he engaged in sexual activity with Waite on three occasions. (See Compl. ¶ 16.) At the time, Waite was thirty-six-years-old (see Deposition of Nicole Waite, dated Feb. 8, 2006 ("Waite Dep."), attached as Exhibit C to Frommer Decl., at 42), and Plaintiff was seventeen (see Richardson PSR).
Plaintiff claims that on one occasion, Waite made sexual advances towards him in a movie theater, and then engaged in sexual activity with him in a restaurant bathroom. (See Compl. ¶ 16; Richardson Dep. at 60-68, 79-80, 88-95.) On another occasion, Plaintiff claims Waite instructed him to come to her office and to bring documents needed for completion of his PSR, as well as a condom. (See Compl. ¶ 16; Richardson Dep. at 104-05.) Plaintiff claims that after he entered Waite's office, she closed the door and subsequently performed oral sex upon him. (See Compl. ¶ 16; Richardson Dep. at 113, 117-18.) Plaintiff claims that on the third occasion, he and Waite had sexual intercourse at a hotel. (See Compl. ¶ 16; Richardson Dep. at 104-41.) Waite admits to having sexual intercourse with Plaintiff one time, at a hotel, in late May 2003. (See Waite Decl. at 247-52.)
Between May and July, Plaintiff and Waite spoke on the telephone dozens of times. (See Cellular Phone Records of Nicole Waite, attached as Ex. D to Declaration of Michael G. O'Neill, dated June 19, 2006.) Waite also sent two letters to Plaintiff. (See Letter of Nicole Waite to Azariah Richardson, dated June 7, 2003, attached as Ex. 7 to Pl.'s 56.1 Stmt.; Letter of Nicole Waite to Azariah Richardson, dated June 23, 2003, attached as Ex. 8 to Pl.'s 56.1 Stmt.). In both letters, Waite referenced prior sexual activity with Plaintiff.
On June 10, 2003, Plaintiff was sentenced as a Youthful Offender. (See Richardson Dep. at 333.) Plaintiff admits calling Waite after his sentencing, but said he did so only to return her calls, or one occasion, to get information about Planned Parenthood for a relative who had impregnated his girlfriend. (See id. at 337-47.) Plaintiff claims he complained to his family about Waite's calls to Plaintiff's home (see id. at 137-40), but did not tell them of his sexual activity with Waite, or that she was his probation officer, until his mother found and read Waite's letters (see id. 174-76, 201).*fn6
Plaintiff claims that he felt threatened by Waite's position as a probation officer and that her repeated statements that he had to be "good" led him to believe that he had to submit to her sexual demands. (See Richardson Dep. at 28-29, 376-85.)*fn7 He claims he did not want to have sex with Waite, but was worried about what Waite would do to him because of his subordinate position. (See id. at 60-61.) Plaintiff never explicitly told Waite he did not want to have sex with her, but attempted to thwart her advances by, among other things, mentioning that he had a girlfriend. (See id. at 386-90.) Plaintiff claims that after engaging in sexual activity with Waite, he became depressed and sought psychological treatment. (See id. at 236-41.)
II. Nicole Waite's Tenure at the New York City Department of Probation
Waite began her employment as a probation officer with the New York City Department of Probation in 1991. (See Waite Dep. at 9.) In order to become a probation officer, Waite was required to take an examination, pass a physical examination, and complete an interview. (See id. at 18.) Waite testified that she received initial training at the commencement of her employment, and continuing training on a "random" basis thereafter. (See id. at 20-22, 57-58.) Waite's training included instruction on how to write a PSR, the duties and responsibilities of a peace officer, and physical defense. (See id. at 20-28, 57-65.) Waite did not recall any training regarding the DOP Code of Conduct, social interactions with defendants, dealing with the exertion of influence in the performance of her official duties, or on the supervision of youthful offenders.*fn8 (See id. at 62-64.) Waite received and read the DOP Code of Conduct (see Waite Dep. at 285), and received and kept a number of Executive Acts and Policy statements known as "EPAPs" (see id. at 28-29, 34-36). Prior to her supervision of Plaintiff, Waite had never been disciplined by the DOP. (See Waite Dep. at 65; Costello Dep. at 88-90.) Waite's supervisor, Christopher Costello, testified that he never received a complaint from any defendant regarding Waite, and that no employees at the DOP had complained to him about Waite's conduct as a probation officer. (See Costello Dep. at 155, 161.) Waite admits that no one at the DOP ever told her that she was permitted to have a social or sexual relationship with a defendant. (See Waite Dep. at 286.) Waite also admits that she never received any EPAP that stated she was permitted to have a social or sexual relationship with a defendant. (See id.)
According to Waite, at some point prior to her supervision of Plaintiff, a letter addressed to her, from an inmate she had supervised prior to his incarceration, was intercepted by a supervisor. (See Waite Dep. at 131-34.) Waite testified that she was questioned by her supervisor about the letter.*fn9 (See id.)
III. DOP Investigation and Waite's Termination
Although defendants and probationers can file complaints with the DOP (see Costello Dep. at 155), Plaintiff never complained to the DOP about Waite (see Richardson Dep. at 64, 77-78). Plaintiff claims that he did not know he could report Waite to the DOP. (See id.)
Prior to learning of the instant allegations, Costello had no knowledge of any social interaction between Waite and a defendant or probationer. (See Costello Dep. at 89-90, 156.) Waite did not tell Costello about her relationship with Plaintiff (see Waite Dep. at 285), or that Plaintiff had called her outside of the office (see id. at 287). Costello saw nothing in the PSR that suggested to him that there had been any improper contact between Waite and Plaintiff. (See id. at 156.)
At some point, Plaintiff filed a complaint against Waite with the New York City Police Department. Waite was questioned by Costello and DOP Branch Chief Ralph Abreu about her relationship with Plaintiff.*fn10 (See Waite Dep. at 266; Costello Dep. at 99-101.)
She denied having a social relationship with Plaintiff. (See id. at 101.) In October 2003, Waite was suspended without pay from the DOP for engaging in conduct in violation of the Code of Conduct. (See Letter from the City of New York Department of Probation to Nicole Waite, dated Oct. 1, 2003, attached as Ex. I to Frommer Decl.; Notice and Statement of Charges from the City of New York Department of Probation to Nicole Waite, dated Oct. 2, 2003, attached as Ex. J to Frommer Decl.) After an investigation, the City terminated Waite's employment. (See Waite Dep. at 278.)
The conduct of employees of the New York City Department of Probation is governed by EPAP statements and the New York City Department of Probation Code of Conduct. (See Costello Decl. at 38-80; Code of Conduct of the City of New York Department of Probation, attached as Ex. E to Frommer Decl.)
Under the Code, it is an act of general misconduct for a DOP employee to "threaten, intimidat[e], or harass a fellow employee or private citizen," to "engage in sexual harassment," or to engage in "conduct that is prejudicial to good order and discipline" or "that tends to bring the Department or City into disrepute." (See Code of Conduct, at 4-5.) The Code of Conduct also states that it is a conflict of interest and conduct unbecoming a City employee to engage "in any social relationship with a probationer that would give or tend to give the impression that a conflict of interest exists. It is mandatory that an employee disclose to his/her superior the existence of a present or prior relationship with a probationer." (See Code of Conduct, at 8.) The Code defines myriad acts which constitute "conduct unbecoming a City employee," including conflicts of interest, which includes inter alia "[m]isuing his/her official capacity for personal benefit . . . ." (See Code of Conduct, at 7.) An EPAP issued in August 2001 reiterates that each DOP employee must conform his or her behavior to the standards set forth in the Code. (See The City of New York Department of Probation Procedure No. 10-02-01, dated Aug. 16, 2001, attached as Ex. G to Frommer Decl.)
EPAPs issued in 1992 and 2001, which were provided to DOP staff, expressly state that "it is prohibited for staff to engage in any social relationship with a probationer that would give or tend to give the impression that a conflict of interest exists." (See The City of New York Department of Probation Procedure #EXEC-02-01, dated Feb. 7, 2001 ("Social Contact EPAP"), attached as Ex. F to Frommer Decl.; New York City Department of Probation Executive Offices, Executive Policy and Procedure No. 10-1-92, attached as Ex. H to Frommer Decl.) The parties dispute whether the Code and EPAPs prohibit probation officers from engaging in social relationships with "defendants." Plaintiff contends that DOP policies do not expressly prohibit social relationships with defendants. (See Plaintiff's Memorandum of Law in Opposition to Defendant the City of New York's Motion for Summary Judgment, dated July 28, 2006 ("Pl.'s City Mem."), at 9.) Waite testified that she understood the prohibition on social relationships to apply only to probationers because probationers "were under the jurisdiction of the department." (See Waite Dep. at 161-64.) Costello testified that the Code clearly prohibits probation officers from taking defendants to movies or dinner or having sexual relationships with defendants. (See Costello Dep. at 153-54.) He also testified that probation officers are permitted to meet with defendants outside of the DOP offices only upon receiving departmental approval. (See id. at 76.)
Costello testified that, as part of his ongoing training, he had participated in a sexual pressure role-playing scenario. (See Costello Dep. at 120.)
I. Standards for Summary Judgment
Summary judgment is appropriate only when the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the burden of showing an absence of evidence to support to non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2548 (1986). In deciding a motion for summary judgment, a court must "must resolve all ambiguities and draw all factual inferences in favor of the nonmoving ...