The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Rachel Rodriguez ("Rodriguez" or "plaintiff") brought this action alleging employment discrimination on the basis of her race, color, national origin, gender, disability, hostile work environment, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., ("Title VII"), Title I of the Americans with Disabilities Act ("ADA"), the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1983 and 1985, and the New York State Human Rights Law, Executive Law § 269 et seq., ("NYSHRL"), against the following defendants: City of New York ("City"), Raymond W. Kelly, Police Commissioner ("Kelly"); Neldra M. Zeigler, Deputy Commissioner, Office of Equal Employment Opportunity ("Zeigler"); Rafael Pineiro, Chief of the Personnel Bureau ("Pineiro"); Diana L. Pizzuti, Deputy Chief, Commanding Officer of the Police Academy ("Pizzuti"); Dr. Eloise Archibald, Director of the Psychological Services Section ("Dr. Archibald"); Scott T. Loos, Deputy Inspector, Recruit Training School ("Loos"); Louis Carabetta, Lieutenant, Recruit Training School ("Carabetta"); Patrick Zweibel, Lieutenant, Recruit Training School ("Zweibel"); and Saledine Patel, Sergeant, Recruit Training School ("Patel") (collectively, "defendants"). The individual defendants are charged individually and in their official capacities as employees of the Police Department of the City of New York.*fn1
Defendants now move for summary judgment on all claims, pursuant to Fed. R. Civ. P. 56(c). For the following reasons, defendants' motion is (1) granted with respect to the ADA claim and municipal liability claims against the City, the Section 1983 conspiracy claim and the official capacity claims against all defendants, and all claims against defendants Kelly, Zeigler, Pineiro, and Pizzuti; (2) denied with respect to the Title VII and pendent state law discrimination claims against the City; and (3) denied as to the Section 1981 and 1983 claims, as well as the pendent state law discrimination claims, against defendants Archibald, Zweibel and Sergeant Patel, in their individual capacity.*fn2
A. FACTUAL BACKGROUND*fn3
The facts described below are taken from the parties' depositions, affidavits, exhibits and defendant's Local Rule 56.1 statement of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).
1. Plaintiff's Initial Evaluation
Plaintiff served as a probationary police officer with the New York City Police Department ("NYPD") from July 2004 until her termination on April 15, 2005. (Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Defs.' 56.1") ¶ 1.) In connection with her employment with the NYPD, plaintiff underwent an initial psychological screening by Dr. Maureen Creagh-Kaiser and was found to be "psychologically suitable." (Id. ¶ 3.) Plaintiff contends that Dr. Creagh-Kaiser, former Police Psychologist Level One, was not licensed in the State of New York at the time she performed plaintiff's initial evaluation. (Pl.'s Ex. A.) Dr. Creagh-Kaiser's recommendation was approved by defendant Archibald, one of the supervising licensed police psychologists. (Id.)
2. Plaintiff's Alleged Claustrophobia
In July 2004, plaintiff was assigned to the police academy for recruit training. (Defs.' 56.1 ¶ 4.) On November 19, 2004, plaintiff attended an "Emotional Disturbed Person" ("EDP") training workshop as part of her training for the police academy. (Id. ¶ 5.) The parties, however, dispute who was in charge of the EDP workshop. Defendants claim Sergeant Patel was in charge, while plaintiff claims no independent knowledge of that fact. (Pl.'s Ex. A, at 51.) As discussed infra, defendant's articulated, nondiscriminatory basis for terminating plaintiff focuses on the events of November 19, 2004. The evidence regarding the events of that day and the City's subsequent decisions related to those events are outlined below.
The EDP workshop was held on the sixth floor of the BMW Building, 555 West 57th Street, which is owned and managed by S.L. Green Realty Corp. (Pl.'s Ex. A, at 42-43; Ex. H, at 000150.) When plaintiff arrived at the BMW Building, she noticed a group of female recruits with whom she was "avoiding conflict" standing by the elevator. (Defs.' 56.1 ¶ 9.) Plaintiff asked a group of security guards if she could use the stairs instead. (Id. ¶ 10.) According to plaintiff, she requested to use the stairs in order to avoid that group of female recruits by the elevator with whom she previously had a conflict. (Pl.'s Ex. B, at 58:5-10.) The security guards did not allow her to do so because they did not have stair access. (Defs' 56.1 ¶ 10.) However, at that point, plaintiff noticed the group of female recruits was gone, so she proceeded towards the elevators. (Pl.'s Ex. A, at 58:5-10.)
Plaintiff encountered Police Officer Kelvin Liz in the lobby waiting for the next elevator. (Defs.' 56.1 ¶ 12.) Both Police Officer Kelvin Liz and Rodriguez heard former Security Officer Magdalena Vincente (a/k/a "Halliday") call to them, and saw her holding an elevator open. (Id. ¶ 13.) Plaintiff rode the elevator with Liz, Halliday and other passengers. Although plaintiff did not know the other passengers in the elevator, she thought they worked in the building. (Id. ¶ 14-15.) According to plaintiff, while she was talking to security guard Halliday, "[she was] very close to the elevator doors" and "while [they] were talking, [plaintiff] used [her] hands so [Halliday] says be careful with your hands because they have sensors." Plaintiff apologized and "put her hands back" and "took [her] duffle bag and [she] pushed it back as well." (Pl.'s Ex. D, at 59:8-12.)
According to plaintiff, on the ride up the elevator, Officer Halliday commented to plaintiff "so what is it, you don't like elevators?" to which plaintiff responded, "no." (Pl.'s Ex. D, at 59:3-8.) Officer Halliday then said "Okay, this elevator, you know, they function fast" and plaintiff then said "okay." (Id.) Plaintiff testified that when the elevator arrived at the sixth floor, a lady exited the elevator and said to plaintiff "I don't like elevators because they're in enclosed areas and they make me feel x, y, and z."*fn4 (Defs.' 56.1 ¶ 18.) Plaintiff further testified that plaintiff was "perplexed" by the woman's statement and wondered why the woman was sharing it with her. (Id. ¶ 19.) Plaintiff guessed that the woman felt "compelled to say that she didn't like elevators" after hearing Halliday ask the plaintiff, "do you not like elevators for whatever reason." (Id.) Plaintiff and Police Officer Liz just nodded their heads and proceeded to the room for training. (Pl.'s Ex. D, at 59:18-25.)
During the EDP workshop, plaintiff was asked to participate in a scenario that took place on a simulated subway car. (Defs.' 56.1 ¶ 22.) Plaintiff contends that she was not randomly selected, but instead was asked to participate in the scenario only after Sergeant Patel whispered in Police Officer Aquino's ear. (Pl.'s Ex. E.) Plaintiff's job during the scenario was to aid a woman who was acting out a panic attack. (Defs.' 56.1 ¶ 26.) During the scenario, plaintiff was complimented by Officer Aquino for the way she handled the aided person. (Id. ¶ 27.)
Defendant contends defendant Aquino was the instructor in charge of the scenario. (Defs.' Ex. A, at 46-49.) Although plaintiff did not have any independent knowledge to confirm or deny who was in charge, plaintiff admits that former defendant Aquino was present during the scenario, as well as Police Officer Sumedo, a male instructor. (Pl.'s Ex. F, at 145-48.) Plaintiff participated in the scenario with three other officers, including female officer Martha Rodriguez. (Defs.' 56.1 ¶ 25.) The other members of plaintiff's recruit class were present during the scenario.
(c) Post-Workshop Encounter
After the workshop ended, plaintiff was approached by Sergeant Patel. (Defs.' 56.1 ¶ 29.) Sergeant Patel advised plaintiff that "she had heard that [plaintiff] suffered a panic attack in the elevator." (Id.) Specifically, plaintiff testified that Sergeant Patel told her that "someone had approached her and had given her a description of someone with a gray shirt, short, at the time [plaintiff's] hair was blond, fair skinned and that had suffered a panic attack and she thought it was [plaintiff]."*fn5 (Id. ¶ 30.) Plaintiff was wearing her blue jacket zipped over her uniform which included a grey shirt. (Id. ¶ 20.) Plaintiff described her hair color at the time to be blonde and her complexion to be fair skinned. (Id. ¶ 21.)
Plaintiff told Sergeant Patel, "I believe you have the wrong person because I did not suffer a panic attack in the elevator." (Id. ¶ 30.) Sergeant Patel responded that she was sure it was plaintiff, and advised plaintiff that "if [she] had any conditions, that [she] should come forward and address them." (Id. ¶ 31.) Plaintiff further testified that Sergeant Patel asked her if she reported her condition to the psychologist to which plaintiff said "no," and added, "[T]here's nothing to report. Therefore, I'm not going to say anything that has never existed in my life." (Id. ¶ 32.) According to plaintiff, Sergeant Patel was "really being pushy" during the conversation and stated "just say it, say it . . . why don't you just say I'm claustrophobic." (Id. ¶ 33.) Plaintiff refused. (Pl.'s Ex. G, at 55:4-8.)
Sergeant Patel told plaintiff that she should report the claustrophobia condition to the psychologist and also that she (Patel) was going to prepare a memo. (Defs.' Ex. A, at 68-69.) Sergeant Patel further told plaintiff that she was going to mention what happened that day in this memo, including the scenario and the panic attack in the elevator. (Id.) Plaintiff felt that Sergeant Patel's mind was already made up so she told her that "if that's what she felt it was the right thing to do, then to go ahead and do so."*fn6 (Pl.'s Ex. H, at 69:20-22.)
Sergeant Patel forwarded a memorandum, dated November 19, 2004 ("49 Memo"), to the Commanding Officer of Police Academy Recruitment that stated Rachel Nunez (a/k/a "Rodriguez") failed to disclose a medical condition of claustrophobia to the New York City Police Department. (Defs.' Ex. I.) Sergeant Patel also included that plaintiff disclosed to her that she was trapped in an elevator four years ago and had suffered a panic attack. (Id.) Plaintiff disputes that she made such statements. (Pl.'s 56.1 ¶ 40; Defs.' 56.1 ¶ 40.)
Approximately two weeks later, plaintiff was approached by Police Officer Richard Mendez, who told her that he read the 49 Memo wherein plaintiff "confessed [she] was claustrophobic." (Defs.' 56.1 ¶ 41; Pl.'s 56.1 ¶ 41.) On November 22, 2004, plaintiff spoke with Sergeant Rosado about the EDP workshop incident. (Defs.' 56.1 ¶ 43.) Plaintiff alleges that Sergeant Rosado asked her to come into her office, where she closed the door and stated, "These people do not operate in good faith. Do not expect a fair investigation. I think you should get yourself an attorney." (Pl.'s Ex. V, at 73-75.)
4. Psychological Evaluation
On November 26, 2004, plaintiff was directed to report to psychological services where she met with Dr. Maureen Gerise Creagh-Kaiser ("Dr. Creagh-Kaiser"). (Defs.' 56.1 ¶ 44.) Plaintiff contends, and Dr. Creagh-Kaiser testified, that Dr. Creagh-Kaiser was ordered by defendant Eloise M. Archibald to interview the plaintiff. (Pl.'s Ex. W, 21:3-8.) Plaintiff did not meet with defendant Archibald on November 26, 2004. (Defs.' Ex. A, at 77, 81, 104.) Plaintiff's memo book entry states that Dr. Creagh-Kaiser asked plaintiff "why did you Lie." (Defs.' 56.1 ¶ 47.) The entry also states, "I realized [Dr. Creagh-Kaiser] along with Sgt. Patel had made-up her mind about whatever Sgt. Patel decided to write on the 49 [49 Memo]. Sgt. Patel apparently wrote that I had confessed to her that I was treated medically for claustrophobic [sic] no such conversation took place. She also stated that I took a freight elevator. No such event happened." (Id. ¶ 47.)
During this meeting, Dr. Creagh-Kaiser questioned plaintiff about the 49 Memo and plaintiff testified that she advised Dr. Creagh-Kaiser that if she wanted the truth about what happened during the scenario she should "investigate any [of the] other 38 [recruit] members that were there." (Def.'s Ex. A, at 78.) Plaintiff denied that she suffered a panic attack, that she had claustrophobia, that she was treated for claustrophobia, or that she took medications. (Defs.' 56.1 ¶ 49.) Plaintiff revealed that she used to be a flight attendant prior to her work at the police academy. (Id. ¶ 50.)
Plaintiff discussed with Dr. Creagh-Kaiser a 1999 incident where she was stuck in the elevator of her apartment building while pregnant. (Id. ¶ 51.) Specifically, around June or July of 2000 when plaintiff was seven months pregnant, she was by herself and got stuck in an elevator between floors for about fifteen to twenty minutes. (Id. ¶ 52.) Plaintiff pressed buttons for the alarm, the lobby, and the nineteenth floor, where she lived. (Id.) The doors of the elevator were jammed, so plaintiff "pried [them] open with [her] hands and [she] got out." (Id.) Plaintiff testified that, although she was "stressed and "pretty upset" by the event, she did not panic. (Id. ¶ 53.) She felt "a little apprehensive" about elevators for about a month or so following the incident, but eventually continued taking elevators. (Id. ¶ 54.) Plaintiff testified that she did not previously disclose this incident to the NYPD "because, I mean, there's so many things that occur in your life, what are the chances of you remembering everything in specific. So at the time, you know, I didn't remember the incident." (Id. ¶ 55.) Plaintiff did not report this incident to her gynecologist. (Id. ¶ 56.)
On November 26, 2004, the same date as plaintiff's psychological evaluation, Dr. Eloise M. Archibald ordered the removal of plaintiff's firearms for "the purpose of a psychological evaluation" and had plaintiff placed on Restricted Duty "pending the results of the evaluation." (Pl.'s Ex. BB; Ex. CC, at 267-71.) Defendants dispute who issued the order, contending that Dr. Creagh-Kaiser (not Dr. Archibald) ordered the firearm removal and placed plaintiff on restricted duty. (Defs.' Ex. K.)
Dr. Creagh-Kaiser conducted an investigation relating to plaintiff's alleged claustrophobia. The evidence she relied upon in making her final recommendation is summarized below:
Sergeant Patel submitted the 49 memo disclosing plaintiff's alleged claustrophobia, as discussed supra. Plaintiff contends that Doctors Creagh-Kaiser and Archibald spoke with Sergeant Patel on November 26, 2004 about the 49 statement (Pl.'s Ex. DD; Ex. EE.) Defendants contend that only Dr. Creagh-Kaiser spoke to Sergeant Patel. (Defs.' Ex. M; Ex. B, at 49.)
(2) Halliday's Submissions
On December 21, 2004, Dr. Creagh-Kaiser had a phone conversation with security guard Halliday. Dr. Creagh-Kaiser's notes of the phone conversation reflect that security guard Halliday reported that plaintiff told her that she was claustrophobic. (Defs.' Ex. Q.) Halliday also submitted a handwritten note, dated December 21, 2004, to the police department through Sergeant Patel regarding the November 19, 2004 events (Pl.'s Ex. N; Ex. S; Ex. T), although plaintiff disputes the accuracy of that statement. Halliday testified that she wrote the statement herself after the doctor "told me what she needed, how did she [plaintiff] act that was about it." (Defs.' Ex. C, at 33, 44, 46.) Halliday also testified that she identified plaintiff by name in her December 21 memorandum only because plaintiff's name was given to her by Sergeant Patel.*fn7 (Id., at 32, 55, 56, 58, 61, 63; Ex. D, at 18.) At the request of the doctor, Halliday further submitted an addendum dated January 26, 2005, to her December 21, 2004 memo. (Defs.' Ex. U.) In this addendum, Halliday stated that she asked plaintiff if she was claustrophobic and plaintiff responded "yes." (Defs. Ex. C, at 62.)
With respect to the events of November 19, 2004, Halliday further testified that she recalled an incident with a rookie police officer who she described as "[p]etite size, she had like dirty blondish hair, ponytail, complexion white." (Defs.' Ex. C, at 30-31.)
On November 30, 2004 Dr. Creagh-Kaiser spoke with Police Officer Aquino. Police Officer Aquino related that plaintiff told her that she was claustrophobic and that plaintiff "really feels it is not a big deal." (Defs.' Ex. N.) By memoranda dated December 6, 2004, defendant Aquino submitted information concerning the November 19, 2004 EDP workshop to the Commanding Officer, Medical Division, Police. (Defs.' Ex. P.) The statement submitted by Aquino alleges that plaintiff admitted that she was claustrophobic and could control it in stressful situations. (Id.)
Dr. Creagh-Kaiser also had a phone conversation with Police Officer Moore-Killman from the Police Academy Human Resources Command. (Defs.' Ex. P.) In her notes from the conversation, Dr. Creagh-Kaiser reported that she received the 49 Memo from Sergeant Patel and was instructed to write a referral and sent plaintiff to NYPD psychological services. (Id.)
By memoranda dated March 8, 2005, Dr. Creagh-Kaiser, in consultation with her supervisor, Dr. Archibald, assessed plaintiff by reviewing the memoranda submitted by Sergeant Patel, Aquino, and Halliday, as well as her interview of plaintiff. (Defs. Ex. V; Ex. B, at 40, 51, 56, 131-34, 145, 158-59, 259.) Dr. Creagh-Kaiser assumed that the memoranda submitted by Sergeant Patel, Aquino, and Halliday were true. (Defs.' Ex. B, at 49, 51-53, 73, 75, 77, 89, 107, 137, 313-14.) She testified that she assumed that plaintiff had a motive to cover up her condition in order "to be fully sworn in as an officer." (Id. at 53, 331; Defs. Ex. G, at 256.)
(b) Dr. Creagh-Kaiser's Recommendation
In her March 8, 2005 memorandum, Dr. Creagh-Kaiser made a recommendation to terminate plaintiff from the NYPD based on the following:
Overall, 3 security guards working at John Jay College on November 19, 2004, where NYPD Academy training was taking place, Police Officer Aquino, and Sgt. Patel all reported the PPO's grave difficulty with elevators, and the PPO's report to PO Aquino and Sgt. Patel, specifically, that she is claustrophobic. And, PPO Nunez is denying each of the respective accounts of the incidents and statements that took place on November 19, 2004. This dynamic lends grave question to the PPO's credibility. Furthermore, the PPO's reported level of distress upon entering an elevator and while conducting the scenario poses question for her ability to tolerate the stress of police work. While the PPO clearly denied experiencing difficulty with closed spaces and claustrophobia, the reported actions and behaviors that she took part in are contradictory to the psychological resources required by police officers. Therefore, it is recommended that PPO Rachel Nunez be separated from police work.
Dr. Creagh-Kaiser's recommendation to terminate plaintiff from the NYPD was subsequently endorsed by defendant Archibald, and then through the chain of command until it was finally approved by the NYPD's Chief of Personnel on April 14, 2005. (Defs.' Ex. V, Ex. F, at 125-26; Ex. G, at 231, 483.)
Neither Dr. Creagh-Kaiser nor Dr. Archibald questioned the authors of the respective memoranda to ascertain "their veracity for telling the truth in these statements that were given to the police department," nor did they contact any members of plaintiff's recruit class that attended the EDP workshop or perform a comprehensive "investigation." (Defs. Ex. B, at 23-24, 49, 89, 92; Ex. F, at 40-47; Ex. G, at 232, 233, 261, 266-68, 272-73, 278, 283-84, 289, 297-98, 309-11.)
Plaintiff's interactions as a recruit for the NYPD, specifically her experience while on restricted duty, are also part of plaintiff's claims in this action. As such, the Court has reviewed the evidence relating to these interactions in evaluating plaintiff's claims for discrimination and hostile work environment. A summary of such evidence is outlined below.
According to the defendants, a former male Police Officer (hereinafter, "C.S.") was similarly placed on psychological hold due to his alleged failure to disclose to the NYPD that he received psychological treatment. (Defs.' Ex. A, at 85-89.) Plaintiff testified that C.S. admitted to her that he lied on his pre-employment application by failing to disclose prior treatment for a mental condition, but that members of the police academy staff tried to protect him because he was "blond hair and blue eyed." (Id.) Defendants produced evidence that Police Officer C.S. resigned from the NYPD on June 2, 2005, without the consent of the Police Commissioner, in lieu of being decertified by the Department of Citywide Administrative Services. (Defs.' Ex. AA; Ex. A, at 87.)
Plaintiff, C.S., and other recruits who were either injured or pregnant remained on hold after their academy class graduated. (Defs.' Ex. A, at 88-89.) Plaintiff and C.S. were the only two psychological holds. (Defs.' Ex. Z.) Plaintiff is a Spanish female. (Defs.' 56.1 ¶ 83.) Probationary police officers C.S., Miller, Maria, and Teta were all male. (Id. ¶ 82.) Plaintiff testified that Maria was Spanish, Miller was Black, and C.S. and Teta were Caucasian. (Id.) Plaintiff further testified that probationary police officers Liz and two or three other females were held over due to pregnancy - one was Spanish and the other two were Black. (Id.)
(b) Plaintiff's Assignments at the Police Academy
Plaintiff claims that she had to perform all assignments in uniform, while Caucasian officers were allowed to wear plain clothes. (Pl.'s Ex. OO, at 45-52; QQ, at 116-32.) In January 2005, plaintiff alleges that she, C.S., and other minority officers were ordered to measure and draw floor plans for the academy. (Defs.' 56.1 ¶ 86.) Defendants contend this was because the academy did not have blueprints.*fn8 (Defs.' Ex. A, at 89-90, 93; Ex. E, at 28, 36, 39-40, 89; Ex. H, at 000207-213; Ex. FF, at 21.) Plaintiff also testified that C.S. was not disciplined for not performing such a task or for wearing plain clothes. *fn9 (Defs.' Ex. A, at 98.)
Plaintiff further testified that "[a]fter [C.S.] decided he was no longer partaking of the measuring, Zweibel took it upon himself to make me his secretary." (Defs.' 56.1 ¶ 91.) Specifically, plaintiff contends she was ordered by defendant Zweibel to get his lunch from the Blooming Farm House, answer his phone, count toilets, urinals, showerheads, and sinks on every floor, and to input this information in a spreadsheet. (Id. ¶ 92.) Plaintiff's memo book reflects that she picked up food for Zweibel on five occasions, on February 9th, 10th, 11th, 14th, and 18th, in the year 2005. (Id. ¶ 93.) Plaintiff had to re-do all floor plans after Zweibel told her the first drawings "weren't good enough." (Id. ¶ 94.)
The female recruits who were on holdover due to pregnancy were assigned to the library, either filing or assisting with books. (Defs.' Ex. A, at 90.) Plaintiff testified that recruit Miller was also assigned to do "runs" on occasion that plaintiff described as either "getting the meal or the lunches from the seminars to just set up the room for the conferences." (Defs.' 56.1 ¶ 96.) Plaintiff testified that Miller was also assigned to assemble the NYPD Patrol guide. (Id. ¶ 97.) On February 1, 8, and 9, 2005, plaintiff was also assigned patrol guide related work. (Id. ¶ 98.) Plaintiff testified that on January 12, 2005, NYPD recruit operations ordered all of the hold over recruits to clean the entire gymnasium. (Id. ¶ 99.) Thus, on January 12, 2004, plaintiff cleaned the gym and typed a memo for Detective Davis. (Defs.' Ex. H, at 000208.)
Defendants state that the NYPD's assignment of police officers to custodial duties is neither a violation of the collective bargaining agreement between the City of New York and the union representing police officers, nor the NYPD's own rules and procedures. (Defs.' Ex. BB.) However, plaintiff disputes this. (Pl.'s 56.1 ¶ 90; Defs.' 56.1 ¶ 90.)
Plaintiff testified that, when Zweibel was not satisfied with her work, "he would slam his hand on the table, he would take the documents and throw them right beside me for a sense of intimidation and said, I asked you, in a high pitched voice to do this. And he'll pound on the material, And I want this ace up, and just very hostile." (Defs.' 56.1 ¶ 100.) Plaintiff testified that this happened two or three times. (Id.) Plaintiff also testified that on two or three occasions when individuals asked if plaintiff was able to assist in other projects defendant Zweibel said "she's mine" and "don't ...