The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Genevieve Drees brings this employment discrimination action alleging a hostile work environment and retaliation on the basis of sex under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000-e, et seq., New York State Executive Law §§ 290 et seq. and the First and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983 against defendants the County of Suffolk, Sergeant Carparelli, Sergeant Dacuk, Sergeant Eble, Captain John Hanley and Sergeant William Todoro (collectively, "defendants").
Defendants move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth herein, defendants' motions are granted in part and denied in part.
The following facts are taken from the amended complaint and are not findings of fact by the Court, but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiff, the non-moving party.
Genevieve Drees ("Drees") joined the Suffolk County Police Department ("SCPD") on March 25, 1991, as a dispatcher. (Am. Compl. ¶ 13.) From 1991 through 1996, male SCPD sergeants and officers, including Sergeant William Todoro ("Sgt. Todoro"), Sergeant Carparelli ("Sgt. Carparelli"), Sergeant John Hanley ("Sgt. Hanley"), Sergeant Edward Sheridan ("Sgt. Sheridan") and Sergeant James Barruso*fn1 ("Sgt. Barruso") allegedly made sexual comments to Drees and her female coworkers. (Id. ¶ 14.) Male sergeants and officers also allegedly touched Drees in an unwelcomed sexual manner. (Id. ¶ 15.) According to Drees, approximately twice each month, male SCPD sergeants and officers rubbed Drees' thigh, causing her to pull away. (Id.) On a daily basis, Sgt. Carparelli, Sgt. Todoro, Sgt. Randy and Sgt. Sheridan allegedly rubbed Drees' back and shoulders while attempting to look down her blouse. (Id.) Drees asserts that, on one occasion, Sgt. Sheridan attempted to pull Drees into a computer room and kiss her. (Id.) Drees refused, and ran out of the room. (Id.)
In addition, on several occasions, male sergeants and police officers allegedly followed Drees to her car and attempted to convince her to leave with them to engage in sexual relations. (Id. ¶ 16.) Drees always refused these advances. (Id.) Drees also learned that SCPD sergeants had allegedly placed bets on who would have sexual intercourse with Drees first. (Id. ¶ 17.) According to Drees, in March 1996, Sgt. Todoro accidentally broadcast over the dispatch radio comments intended for only Drees to hear, including "[d]o you taste as good as you look tonight?" and "[y]ou are looking really good tonight." (Id. ¶ 18.) After hearing the comments, another officer contacted Drees and asked her whether Sgt. Todoro had actually made the comments. (Id.) The following night, Drees told Sgt. Carparelli and Sgt. Todoro that their advances and comments were unwelcome, and stated that she would file a written sexual harassment complaint if they refused to cease their actions. (Id. ¶ 19.) The two sergeants ordered Drees out of the office. (Id.) Thereafter, the sexual comments and actions ceased. (Id. ¶ 20.)
The day after Drees complained to Sgt. Carparelli and Sgt. Todoro, she was reassigned from primary radio to data radio. (Id.) When Drees complained about her change in assignments, she was allegedly told "to keep her complaints to herself and see what happens." (Id.) According to Drees, shortly thereafter, Sgt. Carparelli and Sgt. Eble told Drees that they were unhappy with the fact that she was thinking about filing a written sexual harassment complaint, and that Drees would regret doing so. (Id. ¶ 21.) From 1996 through 1997, the SCPD began complaining about Drees' work performance and Drees' work assignments were regularly changed. (Id. ¶ 22a-b.) Drees also received verbal reprimands which, she believes, were unsupported. (Id. ¶ 22c.) The SCPD also allegedly assigned Drees to use equipment that she was not trained to use. (Id. ¶ 22d.)
In 1997, Drees complained to Lieutenant Alice O'Callaghan ("Lt. O'Callaghan") about the sexual comments, changes in her work assignments, and complaints and verbal reprimands about Drees' performance. (Id. ¶ 23.) Lt. O'Callaghan allegedly discouraged Drees from filing a written complaint, stating that the SCPD was a "good old boys' club," that Drees' claims would be difficult to prove, and that her problems on the job would only increase as a result. (Id.) Following her conversation with Lt. O'Callaghan, several SCPD supervisors, including Captain Kenneth Marco, Sgt. Sheridan and Sgt. Todoro asked Drees whether she planned to file a written discrimination complaint. (Id. ¶ 24.) At some point, Sgt. Hanley, Sgt. Todoro and Sgt. Carparelli were transferred out of Drees' precinct. (Id. ¶ 25.)
In December 1997, Drees received her first written reprimand from the SCPD, which she believed was unwarranted. (Id.) In December 1998, Sgt. Eble issued a written reprimand to Drees for several calls that were allegedly mishandled. (Id. ¶ 26.) According to Drees, she had not mishandled any of the calls, and all of the complaints were dropped except for one. (Id.) Sgt. Eble allegedly insisted upon issuing a written reprimand for one of the calls despite the fact that another SCPD employee, Sgt. Pagano, agreed with Drees that she had handled the call appropriately. (Id.)
In late 2001, Sgt. Hanley, who had been promoted to Lieutenant, was transferred back to Drees' precinct. (Id. ¶ 27.) On May 14, 2002, Lieutenant Hanley (hereinafter "Lt. Hanley") allegedly berated Drees in front of several supervisors, accusing her of using her "comp time"*fn2 inappropriately as part of her bereavement leave following her father-inlaw's death. (Id. ¶ 28.) When Drees denied misusing any of her comp time, Lt. Hanley called her a "liar" and stated: "I have got you now. When I am through with you, you will not get a job at McDonald's." (Id.) A review of Drees' requests for bereavement leave revealed that she had not misused her comp time. (Id.) In July 2002, Lt. Hanley was promoted to Captain and was transferred out of Drees' precinct. (Id. ¶ 29.)
On July 1, 2004, Captain Hanley (hereinafter "Cpt. Hanley") visited Drees' precinct and spoke with Sgt. Dacuk and Lieutenant Mark Fischer ("Lt. Fischer"). (Id. ¶ 30.) According to Drees, Sgt. Dacuk was one of Drees' supervisors and had only worked in the department for six months at that time. (Id.) Drees asserts that Lt. Fischer was Sgt. Dacuk's close friend. (Id.) Prior to his conversation with Cpt. Hanley, Sgt. Dacuk had been friendly with Drees and had commended her work performance. (Id. ¶ 31.) Following his conversation with Cpt. Hanley, Sgt. Dacuk stopped speaking to Drees altogether. (Id.) On July 19, 2004, Sgt. Dacuk verbally reprimanded Drees for the first time regarding one of her calls. (Id. ¶ 32.) Although no problems were found with respect to the call, Sgt. Dacuk warned Drees that he would be checking her work very closely. (Id.)
On August 12, 2004, Sgt. Dacuk, Sergeant Munson, Sergeant Smith and Ms. Hubner, one of Drees' supervisors, insisted that Drees have a union representative present for a routine interview. (Id. ¶ 33.) Later, Drees was informed that the SCPD had believed that the presence of a union representative was necessary because Drees had considered filing a written charge of sexual harassment in 1997. (Id.) When Drees complained to her union about the SCPD's actions, she was informed that Sgt. Dacuk felt uncomfortable around Drees because he believed that she would press sexual harassment charges. (Id. ¶ 34.) On October 20, 2004, Cpt. Hanley again visited Drees' precinct and spoke with Sgt. Dacuk. (Id. ¶ 35.) The next day, Drees was demoted two grade levels, from dispatcher to 911 operator. (Id. ¶ 36.) As Drees had not worked as a 911 operator for many years, she asked to be retrained, but her request was denied. (Id.) Drees was told to "do the best she could." (Id.)
Immediately after learning of the demotion, Drees complained to Lt. O'Callaghan, stating that the demotion was in retaliation for her complaints of sexual harassment and retaliation. (Id. ¶ 37.) Drees also told Lt. O'Callaghan about Cpt. Hanley's conversations with Sgt. Dacuk, and stated that she believed Sgt. Dacuk had been informed of her previous complaints of sexual harassment and retaliation. (Id. ¶ 37.) According to Drees, Lt. O'Callaghan agreed that the SCPD's actions were in retaliation for Drees' past complaints. (Id.) Following her conversation with Lt. O'Callaghan, Sgt. Dacuk and Ms. Hubner allegedly "overscrutinized" Drees and reprimanded her for actions that had not raised a concern prior to her meeting with Lt. O'Callaghan. (Id. ¶ 38.) According to Drees, Sgt. Dacuk and Ms. Hubner also reprimanded Drees for actions that they did not criticize when performed by Drees' colleagues who had not made complaints about sexual harassment or retaliation. (Id.) Each time that Drees was reprimanded, her requests to be retrained were denied. (Id.) According to Drees, her union representative confirmed that the SCPD harassed her "in an effort to cause [Drees] to lose her temper and be insubordinate." (Id.)
On December 8, 2004, Drees was demoted three additional grade levels, from 911 operator to switchboard operator. (Id. ¶ 39.) The SCPD alleged that Drees was demoted because it received a civilian complaint regarding one of the 911 calls that Drees handled. (Id.) Drees contends that the SCPD never received a complaint from the civilian in question. (Id.) On December 10, 2004, the SCPD brought disciplinary charges against Drees for actions that she had allegedly engaged in from September 2000 through June 2004. (Id. ¶ 40.) According to Drees, such charges were without basis and were brought in a manner contrary to SCPD policies.*fn3 (Id.)
On December 15, 2004, Drees requested a copy of her personnel file. (Id. ¶ 41.) On January 15, 2005, when she received a copy of the file, she noticed that many of the documents that had been contained in the file on April 10, 2002 (the first time that she had reviewed the file's contents) were no longer there. (Id.) Drees also contends that many of the written reprimands contained in the file did not contain her signature, as required by SCPD policy. (Id.) On January 27, 2005, Drees was given a choice between leaving her job or accepting a demotion to Detention Attendant, one month of suspension without pay, and one year of probation. (Id. ¶ 42.) Drees accepted the demotion. (Id.) According to Drees, her job responsibilities have changed, she earns approximately twenty-thousand dollars less than before, and the attendant position is five grades lower than her dispatcher position - factors which will also affect her pension. (Id.) In addition, as a Detention Attendant, Drees does not receive opportunities to perform overtime and to accrue comp time. (Id.) During March 2005, Sgt. Dacuk allegedly announced to Drees' coworkers and supervisors that she was "a bad dispatcher" and that she had improperly voided over two thousand calls. (Id. ¶ 43.)
On July 7, 2006, plaintiff filed the instant action. In her amended complaint, filed on September 19, 2006, plaintiff asserted causes of action under (1) Title VII of the Civil Rights Act of 1964; (2) the First and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983; and (3) the New York Human Rights Law. Plaintiff seeks compensatory and punitive damages, lost pay, front pay, injunctive relief, attorneys' fees and costs. On December 1, 2006, defendants moved to dismiss as to all claims. Oral argument was held on March 9, 2007.
Defendants' motions to dismiss for want of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Rule 12(b)(6) are governed by the same standard. See Coveal v. Consumer Home Mortgage, Inc., No. 04-CV-4755 (ILG), 2005 U.S. Dist. LEXIS 25346, at *6 (E.D.N.Y. Oct. 21, 2005) (citing Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003), cert. denied, 540 U.S. 1012 (2003)). In reviewing such motions, the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). The plaintiff must satisfy "a flexible `plausibility standard.'" Iqbal v. Hasty, 2007 U.S. App. LEXIS 13911, at *36 (2d Cir. Jun. 14, 2007). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (May 21, 2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face." Id. at 1974.
"A court presented with a motion to dismiss under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6) must decide the `jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.'" Coveal, 2005 U.S. Dist. LEXIS 25346, at *7 (quoting Magee v. Nassau Cty. Med. Ctr., 27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998)); see also Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (noting that a motion to dismiss for failure to state a claim may be decided only after finding subject matter jurisdiction).
A. Rule 12(b)(1) Motion to Dismiss
Defendants argue that this Court lacks subject-matter jurisdiction over plaintiff's Title VII and New York Human Rights Law claims because plaintiff failed to exhaust her administrative remedies. As set forth below, the Court concludes that plaintiff has properly exhausted her administrative remedies.
In order to bring a Title VII discrimination claim in a federal district court, a plaintiff must first exhaust her administrative remedies by "filing a timely charge with the EEOC or with `a State or local agency with authority to grant or seek relief from such practice.'" Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82-83 (2d Cir. 2001) (quoting 42 U.S.C. § 2000e-5(e)). "Exhaustion of remedies is a precondition to suit, and a plaintiff typically may raise in a district court complaint only those claims that either were included in or are `reasonably related to' the allegations contained in her EEOC charge." Id. at 83 (citing Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) and Butts v. City of N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)) (additional citation omitted). In this case, the plaintiff filed a complaint with the New York State ...