The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Juliann Salerno, a police officer employed by the defendant Town of Bedford, New York ("the Town"), brought this action alleging gender and age discrimination in connection with a disciplinary charge brought against her by the Town's Chief of Police. Defendant moved for judgment on the pleadings dismissing the original complaint, plaintiff cross-moved to amend her complaint, and defendant opposed the motion to amend, arguing that the new complaint was equally defective. Defendant's motion to dismiss the original complaint will be granted, and plaintiff's motion to amend her complaint will be denied, without prejudice to renewal of that motion on the conditions set forth below.*fn1
The facts set forth below are drawn from the allegations in plaintiff's proposed amended complaint, which are accepted as true for purposes of deciding this motion.
Plaintiff Juliann Salerno is a police officer employed by the defendant Town. In January 2003, when she was 43 years old, Thomas A. Newman, the Chief of Police, notified Salerno in writing that her past use of sick time was of concern, and that her use of sick time in 2003 would be closely monitored. In April 2003, a second notice recited that she had taken more than 12 days of sick time in the first quarter of the year, and reiterated the warning that she was being monitored. Yet another such letter, noting a total of 23 sick days, was sent in November 2003. Finally, in February 2004, formal disciplinary charges were brought against Salerno, charging her with incompetence based on her allegedly excessive absences.
At the hearing on these charges, it was learned that charges for abuse of sick leave had been brought only against Salerno, the Town's only female full-time police officer, and a male officer who was the Town's oldest officer, even though younger male officers had used an equal or greater amount of sick leave during the period in question. After the hearing, Chief of Police Christian Menzel, who had replaced Newman, wrote to Salerno withdrawing the charges. No disciplinary action was ever taken against Salerno.
Notably, plaintiff's complaint specifically alleges that the dispute about sick leave was part of a broader conflict between the Town and its police officers, the backdrop of which was a a collective bargaining agreement that provided for unlimited sick time for officers.
Specifically, during this time period, there developed a growing concern within the Town and Department about officer use of sick time. The Town attempted and failed to unilaterally change the agreement. Ultimately, a policy outside of the agreement was developed, and through the use of disciplinary letters and memos officers were warned about sick time use.
(Am. Compl. ¶ 19.) This informal "policy" was apparently a failure, in that the evidence at plaintiff's hearing disclosed that "no one in the department knew what exactly the policy was with respect to excessive sick leave, or how to properly enforce the policy." (Id. ¶ 24.)
Salerno subsequently filed a complaint with the Equal Employment Opportunity Commission in August 2004, and received a right-to-sue letter in May 2005. She then instituted this action by filing, pro se, a form complaint, in August 2005. The Town answered the complaint, and then moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. Salerno, at that point represented by counsel, countered by cross-moving to amend her complaint. The Town opposed the motion, arguing that the new complaint also failed to state a claim. Salerno did not file a reply to defend her cross-motion, and made no further effort to counter defendant's attack on her complaint.
I. Motion to Dismiss the Original Complaint
The original complaint asserted claims for age discrimination under the Age Discrimination in Employment Act, 129 U.S.C. § 621 ("ADEA"), gender discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), and violation of plaintiff's constitutional right to equal protection in violation of 42 U.S.C. § 1983. The Town moved to dismiss the Title VII and ADEA claims on the ground that plaintiff failed to allege an adverse employment action, a required element of an employment discrimination claim under both statutes, and moved to dismiss the § 1983 claim on the ground that plaintiff had not alleged that her rights had been violated pursuant to a "policy or custom," as required for municipal liability under § 1983.
The points were well taken. An adverse employment action is a basic prerequisite of an employment discrimination claim under both Title VII, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and the ADEA, Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998). An adverse employment action is a "materially adverse change in the terms and conditions of employment." Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (citation and internal quotation marks omitted). Examples of materially adverse actions include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, and significantly diminished material responsibilities." Sanders, 361 F.3d at 755 (citation and internal quotation marks omitted). Salerno, however, alleged only that disciplinary charges had been brought against her -- charges that were ultimately withdrawn, and that resulted ...