The opinion of the court was delivered by: Brieant, J.
Before the Court in this action for violation of Title VII, 42 U.S.C. § 1983 and N.Y. Human Rights Law § 296, is a Motion to Dismiss for failure to state a claim, pursuant to Fed. R. Civ. Pro. § 12(b)(6). The Motion was filed on September 21, 2007 (Doc. 23). Opposition papers were filed on October 12, 2007 (Doc. 31). Reply papers were filed on October 19, 2007 (Docs. 32 and 33).
The following facts are presumed true for the purposes of this Motion only. Since April 1996, Pamela J. Blanco (the "Plaintiff") has been continuously employed by the Village of Scarsdale (the "Defendant" or "Village") as a police officer. At all relevant times, John Brogan (the "Defendant") who is sued in his individual and personal capacities only, was the Chief of Police of Defendant Village (collectively "the Defendants"). Plaintiff claims that Defendant Brogan's recommendations made to the Village Board concerning promotions of police officers are routinely granted, and thus, contrary to the statute, Chief Brogan controls all promotions made within the Village Police Department. It is Plaintiff's contention that during Chief Brogan's tenure, he has, with knowledge and approval of the Village Board, created a work environment that is hostile to females. Additionally, Plaintiff contends that she was retaliated against by being denied multiple promotions due to her race, gender and age. Plaintiff asserts claims against the Village for violations of Title VII. Plaintiff asserts claims against the Village and Defendant Brogan for violations of her Constitutional right to Equal Protection and N.Y. Exec. L. § 296.
Plaintiff avers that Defendant Brogan, under the authority given to him by the Village, created a hostile work environment at the Police Department against females because Plaintiff claims that:
1) There has never been a female supervisor in the Village Police Department; 2) Plaintiff was the only female member of the Police Department for eight years; 3) A second female officer transferred to a different department because of the gender hostile environment; 4) The only other female officer has rarely worked road patrol; 5) The Department has no maternity leave policy; 6) Female Employees are required to change in a bathroom because there is no women's locker room in the Department.
Additionally, Plaintiff contends that she was subjected to continuous gender-based disparate treatment by being repeatedly skipped for promotions and rejected from specialized training in favor of "lesser qualified, younger males". Specifically, Plaintiff maintains that around the end of 2005, she was denied a position of Traffic Enforcement Officer, in favor of a less experienced male officer. In February 2006, Plaintiff asserts that she was denied assignment as a Field Training Officer in favor of a less experienced male. Plaintiff also maintains that she was denied a required special uniform for bike patrol, which was provided to younger male officers.
Plaintiff asserts that during her employment, she was repeatedly taken out of "field training" by Lt. Bryant Clark, who required Plaintiff to ride in his police vehicle for hours "while he complained about his bad marriage and asked her whether she was dating anyone" which made Plaintiff uncomfortable and resulted in male members of the Department referring to Clark as Plaintiff's "boyfriend." Additionally, Plaintiff asserts that Clark had flowers delivered to Plaintiff's home for Valentine's Day and "purchased her a membership in a gym so he could work out with her." It does not appear that she complained to the management, which appears to have policies in effect which satisfy the Faragher-Ellerth defense.
On January 3, 2007, Plaintiff filed a charge of discrimination with the EEOC. After filing such, Plaintiff claims that she was for the first time issued a uniform for bike patrol and trained as an instructor in CPR. However, it is her contention that later in 2007, she was skipped for promotion to the rank of Sergeant twice in favor of less qualified males who scored lower than Plaintiff on the Civil Service Eligibility List.
Standard for § 12(b)(6) Motion to Dismiss
In deciding a motion to dismiss under Fed. R. Civ. Pro. § 12(b)(6), the Court must "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Additionally, in light of the recent Supreme Court decision in Bell Atlantic Corp. v. Twombly,127 S.Ct. 1955 (2007), in order to withstand dismissal, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. (this abrogates the rule of Conley v. Gibson, 355 U.S. 41, requiring "no set of facts" inquiry for motion to dismiss). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell, 127 S.Ct. at 1965. Thus, the Plaintiff must allege some facts that support the elements of the claim alleged, in order to defeat the motion.
As to Chief Brogan, Plaintiff alleges that Defendant Brogan violated her Constitutional right to Equal Protection, as well as N.Y. Human Rights Law § 296. These claims seem to be based on the missed promotional opportunities and assignments that Plaintiff alleges.
To establish a claim for violation of equal protection under 42 U.S.C. § 1983, a plaintiff must establish that: (1) she was treated differently from other similarly situated individuals and (2) such differential treatment ...