The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff commenced this employment discrimination action with the filing of a complaint on October 16, 2002 (Item 1). She alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New York State Human Rights Law, N.Y.Exec. Law § 290, et seq. ("NYSHRL"). Specifically, plaintiff, a woman of African-American descent, alleges that she was discriminated against on the basis of her race and gender, was subjected to a hostile work environment, and was retaliated against following a complaint against her supervisor. Defendants have moved for summary judgment dismissing the complaint (Item 55). For the reasons that follow, the motion is granted, and the complaint is dismissed.
Plaintiff began her employment with the Buffalo Police Department in 1982. From 1997 until 2000, she was assigned to the "B" District, which serves downtown Buffalo. In approximately June 1997, plaintiff was assigned to a special detail in the "B" District known as the Allentown Detail, a community liaison position in the Allentown neighborhood of Buffalo. The Allentown Detail was a walking patrol, and was generally assigned based on seniority. It was understood to be a desirable position, as the officer was not required to respond to 911 calls. Generally, the officer assigned to the Allentown Detail was also assigned a patrol car.
In July 1999, defendant James Dee became plaintiff's supervisor. In late 1999, plaintiff learned that Dee had referred to plaintiff's daughter, Stacy Lewis, also a Buffalo Police officer, as "Kizzy," the name of a runaway slave in the novel Roots. Dee referred to plaintiff as "Queen Bee," which plaintiff understood to mean "Queen Bitch." Lt. Dee explained to plaintiff that "Queen Bee" was a reference to plaintiff's status as the senior female officer in the "B" District and that "Kizzy" was a reference to an incident in which Stacy Lewis left the jurisdiction. Dee also referred to other officers and supervisory staff by various nicknames. On January 2000, plaintiff asked Dee to stop using derogatory nicknames for her and her daughter. Dee avers that he stopped using the nicknames at that time.
In February 2000, Dee signed and forwarded a request by a white male officer for plaintiff's job assignment. The Allentown Detail was not up for bid or otherwise open at the time. In March and April 200, Dee frequently assigned the patrol car that was usually assigned to the Allentown Detail to other officers and advised plaintiff that the Allentown Detail was a "walking post." He commented that the "real police officers" should be assigned the patrol cars. In approximately August 2000, Lt. Dee began to rotate the Allentown Detail and another special detail, the Main Street Detail, among the officers in the "B" District. Lt. Dee referred to plaintiff and the two male officers who had been assigned to the Main Street Detail as "prima donnas" when they complained about the rotation.
Plaintiff states that Dee singled out her and her daughter for abusive derogatory comments. Plaintiff, Stacy Lewis, and another female officer, Linda Ross-Klubeck, testified that Lt. Dee's conduct toward plaintiff led to the polarization of the "B" District based on gender. Plaintiff, Stacy Lewis, Ross-Klubeck and Officer Patricia Wrest testified that they were sometimes forced to answer dangerous calls without backup and assistance from other officers in the "B" District.
Plaintiff states that she was unaware of any sexual harassment complaint procedure in the Buffalo Police Department in May 2000. On May 16, 2000, she filed a formal complaint against Lt. Dee with the City of Buffalo Police Department's Professional Standards Division ("PSD"). Thereafter, between May 16, 2000 and December 31, 2000, plaintiff was accused of misconduct on three occasions. On May 25, 2000, plaintiff was accused by an anonymous complainant of passing a stopped school bus. No PSD case was opened, and plaintiff was cautioned to be careful. On June 14, 2000, plaintiff was accused in a memorandum by another officer of not being at her post on June 10, 2000 during the Allentown Art Festival. The charges were determined to be unfounded. On July 26, 2000, plaintiff and her daughter were accused of poor performance in their duties during an incident at the Erie Basin Marina. The incident was reported to PSD by Joe Giambra of the City of Buffalo Department of Public Works. A PSD investigation revealed that plaintiff and Stacy Lewis responded to a call from the Marina on July 16, 2000 after an employee reported being harassed by a patron. Plaintiff and her daughter investigated the incident, spoke to the employee, located the patron, and determined that no crime had been committed. They advised the patron to apologize and leave the area. The officers' report of the incident indicated that they ran a warrant check of the patron, yet departmental records indicated that no warrant check had been run at the time. The PSD investigator also stated that the officers' attitude in handling the call "may have been jeopardized by racial beliefs." (Item 70, Exh. M.) Plaintiff's report of the incident suggested that it was a misunderstanding between a white woman and an African-American man. The PSD investigation resulted in verbal counseling for plaintiff and Stacy Lewis.
On September 7, 2000, plaintiff requested a transfer to the Traffic Division. On September 13, 2000, plaintiff was diagnosed as suffering from "adjustment disorder with anxious and depressed mood and post-traumatic stress symptoms." (Item 70, Exh. N.) Her transfer was approved on September 28, 2000. On October 17, 2000, plaintiff's request for injured-on-leave status was denied. In November 2000, she learned that her complaint against Dee had been resolved. Dee pled guilty to a charge of using abusive, discourteous, and insolent language, was given a verbal reprimand, and was ordered to attend a cultural diversity training session. On January 24, 2001, plaintiff returned to work.
On January 31, 2001, she learned that she was being brought up on departmental charges relating to a home confinement check in December 2000. Plaintiff was one of several officers who were out of work on sick leave on December 11, 2000 and were telephoned to check if they were at home. Plaintiff was not at home at the time. A hearing was conducted on February 15, 2001. During the hearing, plaintiff stared out of the window, reportedly because she was nauseous at the thought of being charged with the violation. During the hearing and in a private meeting following the hearing, defendant Diina berated plaintiff for her discourtesy in failing to look at him directly during the course of the hearing.
On February 16, 2001, plaintiff's doctor ordered her off work. On March 5, 2001, she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff returned to work in April 2001. She received a right to sue letter from the EEOC on July 18, 2002. In August 2003, plaintiff retired from the Buffalo Police Department after 21 years of service. The departmental charges resulting from the home confinement check were pending at the time of her retirement and were not resolved.
Defendants advance the following arguments in support of their motion: (1) plaintiff has not established that she was subjected to disparate treatment or retaliation; (2) plaintiff cannot establish that she was subjected to a hostile work environment; (3) the Buffalo Police Department lacks the capacity to be sued; (4) the failure to demonstrate liability against the Police Department mandates dismissal of the claims against defendants Diina and Dee; and (5) defendants are entitled to the defense pursuant to Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 (1998).
1. Summary Judgment Standard
Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir. 2004). The court will not try issues of fact on a motion for summary judgment, but rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted). If, however, "'as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'" Security Ins. Co. ...