The opinion of the court was delivered by: Richard Conway Casey, United States District Judge*fn1
Alsacia De Los Santos ("Plaintiff") brings this action against the City of New York ("City"), the Police Department of the City of New York ("NYPD"), and Lieutenant Christopher Pasquerelli ("Lt. Pasquerelli") (collectively "Defendants"). She alleges (1) that Lt. Pasquerelli, acting under color of law and under his authority as a Lieutenant and Platoon Commander for the City of New York and the NYPD, retaliated against her for speaking about matters of public concern, namely, sexual activity between two officers, in violation of 42 U.S.C. § 1983 and the First and Fourteenth Amendments of the Constitution; (2) that the City and the NYPD should be held liable for these violations of Plaintiff's rights; and (3) that Defendants took adverse actions against her in retaliation for her opposing and reporting what Plaintiff reasonably believed to be sexual harassment in violation of New York Executive Law § 290 et seq. and the Administrative Code of the City of New York § 8-107 et seq. Defendants move for summary judgment on several grounds, namely: (1) Plaintiff fails to state a claim under the First Amendment; (2) Plaintiff cannot show municipal liability; (3) Lt. Pasquerelli is entitled to qualified immunity on Plaintiff's federal claims; and (4) Plaintiff fails to state a claim as to the state and municipal human rights laws. The Court holds that Plaintiff's conversations with her superiors in which she reported a sexual encounter between two police officers did not constitute speech on a matter of public concern for purposes of her First Amendment retaliation claim. Further, the Court finds that no rational trier of fact could conclude Plaintiff was retaliated against for reporting an act of sexual harassment. Therefore, as further explained below, Defendants' motions for summary judgment are granted.
The following facts are presented in the light most favorable to Plaintiff and undisputed (for the purpose of this motion) unless otherwise noted.
On or about August 20, 1999, Plaintiff began her employment with the NYPD in the civilian title of City Custodial Assistant. (See Pl. Dep. at 24-25.) Plaintiff was assigned to the Bronx Task Force ("BTF"). (See id. at 24.)
In September 1999, Plaintiff was assigned, at her request, to the 8:00a.m.-to-4:30p.m. shift. (See Pl. Dep. at 28, 29, 31.) Early one morning that September, Plaintiff opened the door to a locker room and witnessed Lt. Kevin Leddy and Police Officer Tara Eckert engaged in a sexual act while in uniform. (See id. at 71-72.) Specifically, Plaintiff claims that she witnessed Officer Eckert on Lt. Leddy's lap and that Lt. Leddy had Officer Eckert's breast in his mouth. (See id. at 72.) Plaintiff alleges that she remained at the door for approximately one second before she pulled it closed. (See id. at 75.) Plaintiff alleges that Lt. Leddy, who had been facing away from the locker room door, turned around. (See id.)
The record reflects that about a year later, while cleaning in the locker room, Plaintiff informed Sgt. Kim Maguire, her immediate supervisor, about what she saw the year before. (See id. at 29, 81-82.) In her deposition, Plaintiff testified that Sgt. Maguire's reaction suggested that the relationship and activities of Lt. Leddy and Officer Eckert were already known at the BTF. (See id. at 81.) Plaintiff first testified that she told Sgt. Maguire she witnessed an act of sexual harassment (see id.at 83); later she added that she did not believe what she witnessed was sexual harassment (see id. at 171-72).
Plaintiff testified that she did not know whether Sgt. Maguire ever informed Lt. Pasquerelli, Lt. Leddy, Officer Eckert, or Captain Michael Pilecki*fn2 about the events she witnessed. (See id. at 97, 99.) In fact, Plaintiff asked Sgt. Maguire not to tell anyone about what she witnessed. (See id. at 91 ("I asked her, please don't say nothing. I don't want to get in trouble so I guess she didn't mention it to nobody.").)
Plaintiff testified that she also told Police Officer Carmen Koota, who was not assigned to the BTF at the time, what she witnessed. Plaintiff stated that she informed Officer Koota after she told Sgt. Maguire. (See id. at 79.) Plaintiff testified that Officer Koota said, "that's old news, girl." (Id.) Plaintiff does not allege this exchange is either protected speech or a cause of the alleged retaliation.*fn3
Plaintiff stated that "awhile after" she witnessed the sexual activity-sometime after the incident and definitely after she spoke with Sgt. Maguire-while she was cleaning in an adjacent room, she believes she overheard Lt. Leddy tell Lt. Pasquerelli that Plaintiff had found him with Officer Eckert in the Lieutenant's locker room. Plaintiff alleges that she overheard Lt. Pasquerelli respond that he would make her life impossible. (See Pl. Dep. at 90-91; Compl. at 20.)*fn4
Plaintiff testified that sometime before May 2001, just before Captain Pilecki transferred out of the BTF, Captain Pilecki asked her if she had witnessed anything occur between Lt. Leddy and Officer Eckert. Plaintiff testified that she told Captain Pilecki about the sexual activity that she had witnessed. (See Pl.'s Dep. at 109, 110.) Plaintiff admitted that she did not tell Captain Pilecki (or anyone else at the BTF) about the alleged conversation between Lt. Leddy and Lt. Pasquerelli . (See id. at 92-93, 109-112.) Plaintiff testified that she did not know what, if anything, Captain Pilecki did after she told him about the sexual activity that she witnessed. (See id. at 115.) In fact, Captain Pilecki reported the conduct of Lt. Leddy and Officer Eckert to the Internal Affairs Bureau of the NYPD ("IAB").
Plaintiff alleges that Lt. Pasquerelli retaliated against her because she informed Sgt. Maguire and Captain Pilecki about the alleged sexual act. (See Compl. at 26; Pl. Dep. at 175-77.) Her theory is that Lt. Pasquerelli retaliated against her on behalf of his friend Lt. Leddy. (See id. at 174-75.) She stated that the retaliation began sometime near the end of 1999*fn5 (see Pl. Dep. at 146, 172-174), though the exact time period of the alleged retaliation is unclear based on her testimony. Whenever it started, Plaintiff testified that all alleged retaliation ended in September 2001, when she was transferred to the 30th Precinct. (See id. at 145-48; Compl. at 26, 31.)
Plaintiff testified that even prior to witnessing Lt. Leddy and Officer Eckert engaged in a sexual act, and prior to informing anyone at the BTF about what she saw, Lt. Pasquerelli took negative actions towards her because he did not like her. (See id. at 42. ("The guy didn't like me.").) Plaintiff testified that she believed Lt. Pasquerelli disliked her because she was a custodian and from the Dominican Republic. (See id. at 101-102.)
Between the end of 1999 and May 2001, Plaintiff claims that Lt. Pasquerelli retaliated against her by (1) on one occasion not permitting her to enter the BTF's gym; (2) accusing her of stealing his wallet; (3) accusing her of poor work performance; and (4) following her around the command.
First, with regard to the gym incident, Plaintiff testified that on one occasion, at the end of 1999, Lt. Pasquerelli refused to let her use the BTF's gym because officers under his command were then using the gym. (See id. at 68-69, 145-146.)
Second, Plaintiff contends that another police officer told her that Lt. Pasquerelli believed that she stole his wallet. (See id. at 108.) In fact, on or about November 2000, Lt. Pasquerelli filed a complaint with the IAB alleging that his wallet had been stolen and mentioning that Plaintiff had access to the locker room. (See Pasquerelli Dep. at 108, 111-112, Pl.'s Ex. F (Internal Affairs Compl.).) Plaintiff testified that she was never interviewed by IAB or informed of any investigation by IAB into the stolen wallet. (See Pl. Dep. at 108.) Plaintiff testified Lt. Pasquerelli never personally accused her of stealing his wallet. (See id. at 109.)
Third, Plaintiff claims that Lt. Pasquerelli began complaining to Captain Pilecki about her performance, probably in late 2000. Plaintiff testified that she became aware of Lt. Pasquerelli's complaints through a conversation with Police Officer Raymond Marino sometime in 2001. (See id. at 107.) Plaintiff admitted that she was not disciplined as a result of Lt. Pasquerelli's complaints about her performance. (See id. at 107.)
Fourth, Plaintiff alleges that in 2000 Lt. Pasquerelli began following her around the command constantly questioning her and accusing her of not performing her job. (See id. 101-107, 149.) Plaintiff assigned no particular time period to these actions.
Between May 2001 and September 2001, Plaintiff claims that Lt. Pasquerelli's acts of retaliation consisted of: (1) changing her work hours on two separate occasions; (2) citing her for baseless violations; (3) calling her at her residence; (4) intimidating her by following her home in his car on one occasion; (5) "constantly following her around the command including to the supply room and the basement" (see Pl.'s 56.1 Stmt. ¶ 38); (6) making her eat all her meals in the garage; and (7) purposefully directing officers to walk across a freshly mopped floor.*fn6
First, Plaintiff testified at her deposition that Lt. Pasquerelli transferred her tour ten times, then four to six times, then three times. (See Pl. Dep. at 119-123.) Plaintiff's 56.1 statement now indicates the number at two. (See id. at 40-44, 121.) Plaintiff also alleged that she requested shift transfers to accommodate her child care needs which were granted by Sgt. Maguire, but which on ...