The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge
MEMORANDUM - DECISION AND ORDER
Plaintiff Angelita Kercado-Clymer ("plaintiff"), a police officer with the City of Amsterdam Police Department, brings this employment discrimination action against the City of Amsterdam ("City") and Police Chief Thomas V.N. Brownell ("Brownell") pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 ("Title VII"). Plaintiff also seeks relief and/or damages from both defendants for violation of her rights to procedural due process, substantive due process, freedom of speech, freedom of religion, and freedom of association under the United States Constitution, pursuant to 42 U.S.C. §§ 1983 and 1988. Plaintiff seeks state relief under the New York State Human Rights Law ("NYHRL"), codified at § 290 et seq.
In her five-count complaint, plaintiff alleges employment discrimination on the basis of gender, national origin, and religion, and complains specifically of hostile work environment. Plaintiff also alleges retaliation by Brownell against plaintiff for complaining about his discriminatory conduct.
Plaintiff alleges that the City failed to respond to her complaints and by failing to take action against Brownell for his alleged offensive and discriminatory conduct, "the City condoned and/or acquiesced in said conduct, thereby establishing a de facto unconstitutional municipal pattern, practice or policy in derogation of the plaintiff's civil rights" (Id. at ¶ 36), pursuant to the Monell principles outlined and discussed in detail below.
The court has federal question jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Currently before the court are motions by Brownell (Doc. No. 33) and by the City (Doc. No. 34) for summary judgment pursuant to the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") Rule 56 (Doc. No. 33). In the interest of judicial economy, these motions will be decided together. For the reasons set forth below, the defendants' motions will be granted in part and denied in part.
The court takes the following facts from the complaint, pleadings, affidavits, discovery and disclosure materials on file, resolving all ambiguities and drawing all permissible factual inferences in favor of the plaintiff, against whom summary judgment is sought. Plaintiff is of Puerto Rican national origin, and was, for a portion of the time relevant to the case at bar, "married to a black minister." Doc. No. 1 at ¶ 9. Plaintiff is currently employed by and was at all times relevant to this action employed by the City of Amsterdam Police Department. At the time her complaint was filed on January 23, 2007, plaintiff was the only female police officer in that department. Id.
Defendant City is currently and was at all times relevant to this action a city organized and existing under the constitution and statutes of the State of New York, with its principal place of business at 61 Church Street, Amsterdam, New York. Defendant Brownell is currently and was at all times relevant to this action the Chief of Police of the City of Amsterdam Police Department.
Plaintiff alleges that from the beginning of her employment in 1994, Brownell made it a regular practice to make sexually offensive, racially offensive, and religiously offensive comments to her, first in his capacity as police sergeant, then upon his promotion in 1996, in his capacity as police chief. Plaintiff alleges that she complained about Brownell's offensive conduct toward her to representatives of the department's administration, but nothing was ever done about it.
Plaintiff also alleges that upon Brownell's promotion to police chief, he used his position of authority to retaliate against plaintiff for the complaints she made and continued to make about his conduct. Plaintiff alleges that Brownell's offensive conduct and retaliation against her have been continual since approximately 1995. Id. at ¶ 13. From February 2004 to the present time, Brownell is alleged to have made numerous remarks to the plaintiff that were sexually, racially and religiously derogative and offensive. Id. at ¶ 14. Plaintiff alleges specific examples of offensive conduct, which the court will address in detail, infra.
During that same time frame, plaintiff alleges that Brownell treated her less fairly than he treated the male employees in the department in terms of training, discipline, and allowing overtime. Specifically, plaintiff describes an incident where, in responding to an emergency call, she drove the wrong way on a one-way street (an action permitted under New York Vehicle and Traffic Law*fn1 under certain circumstances and allegedly condoned by Brownell for male police officers of the department).*fn2 Plaintiff received a counseling memorandum for the act, but after she filed a discrimination complaint against Brownell with the City, disciplinary charges were filed against her. For this alleged vehicle and traffic infraction, the plaintiff was required to forfeit a substantial amount of accrued vacation time.
Brownell also disciplined a male police officer who wrote a letter to the editor of a local newspaper after a disparaging news article, quoting Brownell extensively, appeared after plaintiff filed the instant lawsuit. Both plaintiff and the male officer were disciplined by Brownell by being denied the privilege of working the desk on weekdays when Brownell was present.
Plaintiff avers that she sent a memo detailing her complaints to Brownell and the City administration in October of 2005. Brownell responded that he had investigated*fn3 and found no merit to her complaints. Plaintiff asserts that the City never responded to her complaint. Id. at ¶ 17. Plaintiff wrote another letter of complaint to the City on January 27, 2006. As of the day she filed the current action, plaintiff had received no response. Id.
Brownell moves for summary judgment based on his contention that (1) plaintiff cannot maintain a Title VII claim against him individually as a matter of law; (2) plaintiff's NY Executive Law § 296 and 42 U.S.C. § 1983 discrimination claims fail under a hostile work environment theory because the claims do not establish [any] severe or pervasive discriminatory behavior that interfered with plaintiff's work performance; (3) plaintiff's NY Executive Law § 296 and 42 U.S.C. § 1983 discrimination claims fail under a disparate treatment theory because plaintiff was not subjected to any adverse employment actions; (4) even if the court reads plaintiff's complaint broadly enough to find a claim of retaliation either under NY Executive Law § 296 and 42 U.S.C. § 1983 discrimination, the claim fails because plaintiff was not subjected to any adverse employment actions as a result of engaging in "protected" speech; and (5) Brownell is entitled to qualified immunity. (Doc. No. 33 at pp. 1-2).
The City moves this court for summary judgment on the grounds that (1) plaintiff's Title VII claims and NYHRL claims are barred by the applicable statute of limitations and are otherwise fatally deficient; (2) plaintiff's harassment claims are precluded by her admitted failure to utilize the City's complaint procedure; (3) plaintiff's claims of retaliation and retaliatory hostile work environment must be dismissed for failure to establish a prima facie case for retaliation; and (4) the plaintiff's complaint fails to state constitutional violation claims upon which relief can be granted. Doc. No. 34 at p.1.
A motion for summary judgment shall be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (West 2009). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82 (2d Cir. 2004). "[I]n assessing the record to determine whether there is a genuine issue as to a material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought[.]" Security Ins., 391 F.3d at 83, citing Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), citing Anderson, 477 U.S. at 250-51.
While the initial burden of demonstrating the absence of a genuine issue of material fact falls upon the moving party, once that burden is met, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial," see Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002), citing Fed. R. Civ. P. 56(c), by a showing sufficient to establish the existence of every element essential to the party's case, and on which that party will bear the burden of ...