The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION AND ORDER
This case arises from the plaintiff's allegations that she was passed over for a promotion to the rank of lieutenant in the Nassau County Sheriff's Department in violation of 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, and the New York Executive Law § 290, et seq.
The following facts are taken from the complaint, the parties' Rule 56.1 statement and counter-statement, the plaintiff's affidavit, and the parties' submissions on the motion. The plaintiff, Donna Anderson was hired by the Nassau County Sheriff's Department ("the Department") as a Correction Officer in July of 1985. Until 1999, the plaintiff's career with the Department was marked by a steady progression of promotions, achieving the designation of First Class in 1990; Corporal in 1998; and Sergeant in 1999. From 1995 to 1999, Anderson was assigned to the Attendance Control Unit/Medical Investigations ("the Unit"). Until she achieved the rank of Sergeant in 1999, the plaintiff was under the direct supervision of Sergeant Peter Dudek. In October of 1999, the plaintiff was designated an "Investigator Sergeant" within the Department.
On June 3, 2000, Anderson took the civil service exam for promotion to the rank of lieutenant and attained the top score of 85, along with ten male candidates. These eleven made up the "first band" of test takers. The "second band" included eighteen male and two female candidates. From the test results, a list of eligible candidates was created. On October 24, 2000, nine appointments were made from the first and second bands to fill nine lieutenant vacancies; all of those appointed were male. Among those receiving a promotion was Sergeant Dudek and as a result, he was transferred to another unit, leaving the plaintiff as the senior officer of the Unit with the title of Supervisor of Human Resources/Personnel.
From June 2000 until September 2002, the Unit was under the direct command of Undersheriff John Maguire. In March of 2001, Dudek returned to the Unit as Executive Officer and Supervisor (falling between the plaintiff and Maguire in the chain of command). In September of 2002, Deputy Undersheriff Anthony Zuaro replaced Maguire as commanding officer of the Unit. Throughout the entire period in question, the Unit was under the ultimate command of Sheriff Edward Reilly.
During the time that Dudek had supervisory authority over the Unit, the plaintiff alleges that an atmosphere of both sexual harassment and gender discrimination permeated the work environment. Specifically, the plaintiff alleges that Dudek would target women by requesting independent examinations and hearings for female officers who sought medical leave because of work related injuries. Furthermore, in May of 2001, Dudek instructed Anderson not to sign her own time sheet according to usual protocol, but instead to send it to Maguire's office for approval. The plaintiff claims that Dudek did not explain why she was required to do so. In September of 2001, Dudek informed the plaintiff that she was required to stamp her overtime time sheet at both the start and end of each overtime shift. The plaintiff claims that no male officers were required to follow these procedures. Anderson states that she complained to Dudek regarding this treatment and even posted an article about sexual harassment in the workplace on the Unit's bulletin board.
In addition, as a sergeant, the plaintiff was given access to the use of county vehicles. However, in August of 2000, Maguire informed the plaintiff that she would no longer be permitted to use the county vehicle assigned to her, but did not explain why. After having her vehicle privileges restored, they were restricted again in August of 2001, when Dudek informed the plaintiff that she could not take the vehicle outside of Nassau County and had to leave it on DOC grounds during her scheduled vacations. The plaintiff alleges that no male officers in the same position faced similar restrictions.
The plaintiff also states that she was subjected to a sexually explicit harassment. Shortly after the Spring of 1999, the plaintiff discovered pornographic web-sites on a computer assigned to the Unit and located in Dudek's office. In addition, the plaintiff complained about the presence of a calendar depicting women in revealing clothing in the Unit trailer. Further, the plaintiff alleges that she was subjected to sexual harassment at the hands of Undersheriff Maguire. Specifically, the plaintiff provides the following account:
Maguire with Dudek present stepped into his private bathroom and stated: Sergeant Anderson, do you want to step into my office?
Maguire stated he loved Halloween because he gives his wife money to go out with her friends so he can answer the door when young girl's [sic] come to his door and state: "would you come in and I will give you a treat?"
In stopping near Maguire who was with Sheriff Reilly, Maguire asked Plaintiff "would you like some candy little girl?" Sheriff Reilly asked Plaintiff if Maguire spoke to [her] like this all the time and [she] said yes.
When [the plaintiff] entered Maguire's office to get paperwork signed, Maguire while talking on the telephone motioned Plaintiff in and said in a loud voice: "and make sure you wear the crotchless underwear to lunch." Maguire laughed and said "it's OK, only Sergeant Anderson is in my office."
2002: [While Anderson] was in Maguire's office, he informed [her] that one of his jobs while working at Riker's Island was in finding areas to put his married bosses' girlfriends. Maguire also told Plaintiff that one of his bosses wanted a girlfriend moved to another building but Maguire reminded him that another girlfriend was in that building. His . . . boss thanked him for looking out for him.
Maguire also stated that if you walked into a boss's office and he put his feet on the desk he was looking for a 'blow job.' [Anderson] expressed her disgust.
Maguire would say in [Anderson's] presence "I fucked the City and now I am raping Nassau County."
While [Anderson] was entering Maguire's office and Dudek leaving, Maguire exited his bathroom and touched his pants zipper and motioned like he was going to unzip it and said "Hey Pete" while laughing.
In June 2002, while [the plaintiff] was in Maguire's office with Dudek, Maguire stated to someone on the telephone, "that noise is Lt. Dudek chasing Sergeant Anderson around the table." Lt. Dudek played along by rapping on the desk with his hands to make sounds like someone running.
In a June 2002 meeting in Sheriff Reilly's office with Sheriff Reilly, Magure, Lt.[Zuarro], John O'Connor, Sergeant Michael Golio, Deputy Undersheriff Head, and Dudek, [Anderson] was subject to sexual toned comments by Head about putting his floppy and drive together and how he puts his floppy in the hard drive and the floppy becomes hard.
Declaration of Donna Anderson, 04CV0650, May 25, 2007, at ¶ 12. The plaintiff states that she complained about these comments to Dudek, but no action was taken in response to her complaints. Instead, the plaintiff alleges that her complaints led to retaliation by her supervisors.
In her role as Supervisor of Human Resources, the plaintiff frequently went to the Unit's "personnel trailer," which housed various personnel documents. While there, the plaintiff found evidence of misfiling, uncashed checks, and other clerical problems in the Unit. On September 11, 2003, the plaintiff wrote a five-page memo to Undersheriff Zuaro detailing her findings concerning these clerical problems. Based on this memo, the Sheriff's Bureau of Investigation ("SBI") initiated an internal investigation of the alleged problems. The plaintiff argues that she was further retaliated against by her supervisors for making this report.
The defendants state that on September 8, 2003, several days before the plaintiff wrote the memo to Undersheriff Zuaro, the SBI initiated an investigation of the plaintiff herself, based upon an anonymous phone call charging that she was receiving overtime payments to which she was not entitled. On September 30, 2003, the plaintiff was informed of the investigation, relieved of her supervising duties, and told to report to the training unit. The plaintiff argues that this was a downgrade in responsibilities. After learning of the investigation, the plaintiff allegedly deleted 450 documents from the Unit computers, including personnel files, inmate tracking records, inmate visitor records, police warrant database, and the motor vehicle department records of her colleagues, resulting in a second SBI investigation. The plaintiff denies that she inappropriately accessed the records and claims that she accessed ceratin personnel and other files only upon the direction of her supervisor.
On November 5, 2003 after the two investigations resulted in findings adverse to her, Anderson received a reprimand and a Notice of Personnel Action, which suspended her without pay for ten days and docked her fifteen vacation days. Subsequently, the plaintiff was permanently relieved of her duties as Supervisor and transferred to a police platoon as a "Security Sergeant." The plaintiff alleges that no other officers have ever been reprimanded for receiving overtime payments.
Later that month, the plaintiff requested disability leave at full pay, but her request was denied. The plaintiff alleges that she suffered emotional distress as a result of the SBI investigations, and that her physician recommended that she take time off in an effort to properly heal old injuries to her back and ankle. She further alleges that she was subjected to different rules than other officers taking medical leave. For example, the plaintiff states that she was required to file successive injury reports, but approximately thirty other people who took medical leave were not required to file such reports.
In December of 2003, the plaintiff filed three grievances under her union's collective bargaining agreement disputing the findings against her and appealing the ensuing reprimand and transfer. Finally, on or about February 2, 2004, Anderson received notification that her medical leave had been reclassified as extended leave, retroactive to November 12, 2003. The plaintiff claims that this was an adverse action, taken without a hearing in contravention of New York State Municipal law § 207(c).
The defendants argue that the plaintiff did not receive a promotion to lieutenant because although she scored well on the exam, she was not otherwise qualified for the promotion. The defendants state that the civil service job qualifications for the rank of lieutenant require that a candidate have both competitive scores on the exam and at least two years of service as a sergeant at the time of appointment. At the time that the nine vacancies were filled on October 24, 2000, the plaintiff had only fifteen months experience as a sergeant and, therefore, was not qualified for the position. However, the plaintiff avers that on September 19, 2003, long after she attained the requisite two years experience, she again requested to be promoted to lieutenant, but was never considered for the position.
Further, the defendants state that the employment actions taken with respect to the plaintiff were not discriminatory or retaliatory and the record clearly establishes that the plaintiff's duties were legitimately altered in response to the investigative findings of the SBI.
Presently before the Court is the defendants' motion for summary judgment. The defendants argue that the plaintiff's claims pursuant to the First Amendment and § 1983 are barred because the report she made regarding the disarray of the personnel trailer was required by her role as a supervising officer, and was not protected speech. In addition, the defendants contend that all of the plaintiff's claims pursuant to Title VII are time-barred and not revived by the continuing violation doctrine. Furthermore, the defendants contend that the plaintiff's Title VII claims are insufficient on their merits because any alleged harassment was not severe or pervasive and the plaintiff failed to avail herself of the Department's established anti-harassment grievance policy. Finally, the defendants argue ...