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Lee v. City of Syracuse

March 25, 2009

KATHERINE J. LEE, PLAINTIFF,
v.
CITY OF SYRACUSE; CITY OF SYRACUSE POLICE DEPARTMENT; CHIEF OF POLICE DENNIS DUVAL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; FORMER CHIEF OF POLICE JOHN FALGE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL KERWIN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; MARK MCARDLE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CAPTAIN PUGH, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DAN BOYLE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DEPUTY CHIEF HANNA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JOHN KAUFFMAN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CAPTAIN THOMAS GALVIN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.
KATHERINE J. LEE, PLAINTIFF,
v.
CITY OF SYRACUSE; CITY OF SYRACUSE POLICE DEPARTMENT; CHIEF OF POLICE GARY MIGUEL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; STEVEN THOMPSON, IN HIS INDIVIDUAL CAPACITY; MICHAEL KERWIN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CAPTAIN THOMAS GALVIN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL RATHBUN, IN HIS INDIVIDUAL CAPACITY; RICHARD DOUGLAS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; AND MICHAEL HEENAN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 5 -

II. FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 6 -

III. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 15 -

A. Summary Judgment Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 15 -

B. Statement of Material Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 -

C. City of Syracuse Police Department (Suits I and II). . . . . . . . . . . . . . . . . - 19 -

D. Title VII (Suit II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -

1. Individual Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -

2. Gender Discrimination (First Cause of Action in Suit II).. . . . . - 20 -

a. Overtime Assignment. . . . . . . . . . . . . . . . . . . . . . - 22 -

b. Use of Work-Time to Attend Appointments. . . . - 23 -

c. Discipline for Violation of SPD Rules. . . . . . . . . - 23 -

3. Retaliation (Third Cause of Action in Suit II). . . . . . . . . . . . . . . - 27 -

4. Hostile Work Environment (Second Cause of Action in Suit II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 -

E. Americans with Disabilities Act (Fourth Cause of Action in Suit I). . . . - 34 -

1. Individual Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 -

2. Title I Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 -

3. Title II Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 38 -

F. Section 1983 (Suits I and II) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 39 -

1. Equal Protection Claims (Sixth Cause of Action in Suit I and Fourth and Fifth Causes of Action in Suit II) . . . . . . . . . . . - 40 -

2. Conspiracy (Tenth Cause of Action in Suit II) .. . . . . . . . . . . . . - 40 -

3. First Amendment (Seventh Cause of Action in Suit I and Fourth and Ninth Causes of Action in Suit II). . . . . . . . . . . . . . - 41 -

a. Individual Defendants and Qualified Immunity. - 41 -

b. Municipal Liability . . . . . . . . . . . . . . . . . . . . . . . . - 43 -

G. Equal Pay Act (Second Cause of Action Suit I and Sixth Cause of Action Suit II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 44 -

H. New York Human Rights Law (Fifth Cause of Action in Suit I and Seventh Cause of Action in Suit II) . . . . . . . . . . . . . . . . . . . . . . . . . . - 45 -

1. Notice of Claim Requirement for NYHRL Claims.. . . . . . . . . . . - 46 -

2. Standard of Review and Statute of Limitations for NYHRL Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 46 -

3. Gender Discrimination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 47 -

a. Overtime Assignments. . . . . . . . . . . . . . . . . . . . . - 48 -

b. Seizure of Plaintiff's Weapon.. . . . . . . . . . . . . . . - 48 -

c. Medical Evaluations and Request for Medical Records. . . . . . . . . . . . . . . . . . . . . . . . . . - 49 -

d. Disciplinary Actions Taken Towards Plaintiff. . - 49 -

4. Retaliation Claims (Suit II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 49 -

5. Hostile Work Environment Claim (Suit II) . . . . . . . . . . . . . . . . . - 50 -

6. Individual Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 50 -

7. Work Environment, Retaliation, and Disability Discrimination (Suit I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 50 -

I. Breach of Contract Claim (Eighth Cause of Action in Suits I and II). . . - 51 -

IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Katherine Lee ("plaintiff"), a police officer with the Syracuse Police Department ("SPD"), commenced actions on October 31, 2003 ("Suit I" or "5:03-CV-1329") and August 4, 2006 ("Suit II" or "5:06-CV-949") against the City of Syracuse, the SPD, and a number of plaintiff's supervisors and fellow employees.*fn1 Defendants City of Syracuse, the SPD, Michael Kerwin, and Thomas Galvin are sued in both actions. Defendants John Falge, Mark McArdle, Captain Ronald Pugh, Daniel Boyle, Deputy Chief Hanna, John Kaufman, and Dennis Duval are named in Suit I only. Defendants Gary Miguel, Steve Thompson, Michael Rathbun, Richard Douglas,*fn2 and Michael Heenan are named in Suit II only. Plaintiff's claims were brought pursuant to Title VII of the Civil Rights Acts of 1964 and 1991, the Americans with Disabilities Act, the Equal Pay Act, 42 U.S.C. § 1983, the New York Human Rights Law ("NYHRL"), and state common law.

Plaintiff's Title VII claims for discrimination and retaliation in Suit I were dismissed. See Lee v. City of Syracuse, No. 5:03-CV-1329, slip op. at 6-9 (N.D.N.Y. Feb. 15, 2005), Dkt. No. 33 (dismissing plaintiff's first and third causes of action). Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56 for the remaining claims in Suit I.

Defendants also move for summary judgment for all causes of action in Suit II. Plaintiff opposes defendants' motions.*fn3 Oral arguments were heard on February 8, 2008 for Suit I and on June 13, 2008 for Suit II. Decision was reserved for both motions. Because these actions involve common questions of law and fact, they are now consolidated pursuant to Federal Rule of Civil Procedure 42(a). The extensive discovery involved in these two suits, the number of causes of actions, and deficient citations to the record have caused the delay in issuing this opinion.

II. FACTS

Plaintiff is a member of the SPD and has been employed there since 1989. Plaintiff was on medical leave from November 15, 2000 until May 28, 2001. Plaintiff returned to work in May 2001 and remained on light duty until September 2002. On September 26, 2002, plaintiff was placed on administrative leave. Plaintiff remained on administrative leave until June 2003 when she returned to full-duty. On September 1, 2006, plaintiff was placed on medical leave for neck and back injuries related to an on-duty car accident that occurred in May of 2004, and although still employed as an SPD police officer, she has not returned to work as stated in her affidavit dated January 22, 2008. As a police officer, plaintiff was paid at the same wage rate as other police officers of the same rank and experience. Plaintiff was also paid when she was on medical and administrative leave, although she could not work overtime when she was on leave because her secondary work permits were revoked.

On November 11, 2000, a physical altercation occurred between plaintiff and defendant Kaufman in the Town of La Fayette while they were off-duty. Plaintiff called the New York State Police but did not have defendant Kaufman arrested. Plaintiff was transferred from the Second Platoon to the First Platoon on November 14, 2000. On November 15, 2000, plaintiff was relieved of her gun. That same day, plaintiff was examined by Dr. Saundra Barnett-Reyes, a private psychiatrist. Dr. Barnett-Reyes found plaintiff incapacitated due to depression and anxiety secondary to domestic assault. Dr. Barnett-Reyes sent a facsimile to the Personnel Division stating that plaintiff should remain on medical leave from November 15, 2000 until November 29, 2000. On November 28, 2000, Dr. Barnett-Reyes sent another letter to the Personnel Division stating that plaintiff should remain on medical leave until January 2, 2001. On December 27, 2000, Dr. Barnett-Reyes faxed a third letter to the Personnel Division stating that plaintiff should not return to work until February 1, 2001. In January 2001, Dr. Barnett-Reyes suggested plaintiff seek a second opinion from Dr. Norman J. Lesswing, a private licensed clinical psychologist. Defendant SPD agreed to this examination and plaintiff was evaluated by Dr. Lesswing.

On January 19, 2001, Dr. Barnett-Reyes wrote a letter to the Personnel Division stating that plaintiff could return to work on February 1, 2001. She also stated that plaintiff should work light duty and only during the day. Dr. Lesswing agreed that this was a reasonable accommodation for plaintiff. Dr. Barnett-Reyes's letter did not include any test results or documentation regarding plaintiff's status. Sergeant Susan Adams and Captain John Agne contacted plaintiff and asked her to release her records from Dr. Lesswing. Plaintiff did not release Dr. Lesswing's psychological tests. Because defendants regarded the information provided by Dr. Barnett-Reyes as insufficient to make a determination as to plaintiff's capacity to return to work, they had Dr. David Simon, a physician from the police department, interview plaintiff. Dr. Barnett-Reyes sent another letter on January 30, 2001 stating why plaintiff was fit to return to light duty during the daytime only.

Plaintiff met with Dr. Simon on January 31, 2001. On February 19, 2001, the Personnel Division received Dr. Simon's report regarding plaintiff. In his report, Dr. Simon recommended that plaintiff should not have access to guns because of her medication and that defendant SPD should get an independent opinion from a psychiatrist because Dr. Barnett-Reyes had not provided an opinion of whether plaintiff could handle a gun. Plaintiff was not allowed to work at this time.

On February 14, 2001, plaintiff was transferred from the Uniform Bureau, Patrol Division to the Administrative Bureau, Personnel Division. On March 20, 2001, a settlement was agreed on at an arbitration hearing whereby plaintiff was required to submit evidence showing that she had received medical clearance to return to work, and defendant City of Syracuse had the right to accept the evidence or require plaintiff to submit to an additional examination. If medical opinions conflicted, the dispute was to be resolved by either a mutually agreed upon medical provider or the arbitrator.

Plaintiff was examined by Dr. Joseph T. Himmelsbach, a private psychologist, on April 20, 2001. Dr. Himmelsbach recommended that plaintiff remain on medical leave for sixty days after which she should be reassessed. Plaintiff returned to light duty in the Records Division on May 28, 2001. Plaintiff's gun was not returned to her. On July 10, 2001, Dr. Himmelsbach examined plaintiff again. He recommended that she remain on light duty for another sixty to ninety days. His letter also stated, "[i]t may also be indicated at this time to review and modify the conditions of her returning to work as regards to weapons and uniform." Ex. 13 to Pl.'s Aff. in Opp'n to Summ. J., 5:03-CV-1329, Dkt. No. 118-14, 3. Plaintiff continued to work on light duty.

On January 9, 2002, Dr. Barnett-Reyes sent a letter to the Personnel Division stating that plaintiff could return to full-duty on January 30, 2002. After reviewing Dr. Barnett-Reyes's letter on January 23, 2002, Dr. Simon expressed his concerns regarding plaintiff's return to full-duty and recommended an evaluation from an independent psychiatrist. On February 1, 2002, Dr. Simon met with plaintiff. Dr. Simon stated that he was concerned about plaintiff's access to guns because the medications she was taking--Klonopin and Depakote--could affect alertness, judgment, and reaction time. He recommended that plaintiff not have her gun returned at that time.

Plaintiff continued to work on light duty until September 2002. On September 26, 2002, plaintiff asserts that defendant Kerwin insisted that plaintiff release her records from Dr. Lesswing. Plaintiff refused to release these records. According to plaintiff, defendant Kerwin threatened to fire her if she did not release the records and ordered her to leave the building. On that day, plaintiff was placed on indefinite administrative leave. On April 24, 2003, plaintiff filed her Equal Employment Opportunity Commission ("EEOC") complaint.

Plaintiff brought a grievance against defendant SPD on an unrelated matter through her union, the Syracuse Police Benevolent Association, Inc ("Union"). Defendant SPD's refusal to allow plaintiff to return to full-duty with her gun was discussed at the arbitration hearing. The arbitrator chose a psychiatrist to evaluate plaintiff and determine whether she should have her gun returned. Defendant City of Syracuse agreed to accept the decision of the psychiatrist. On June 16, 2003, plaintiff was evaluated by Dr. Brian Joseph. Dr. Joseph determined that plaintiff was fit for duty, capable of handling a gun, and did not need further psychiatric treatment. Plaintiff returned to full-duty with her gun on June 27, 2003.

Defendants have a rule requiring a progressive system of discipline. The severity of offenses or whether an individual has been disciplined in the past will generally affect the level of discipline. See Ex. A to Galvin Aff., 5:06-CV-949, Dkt. No. 35-25. The disciplinary records of a number of police officers have been submitted into evidence. See, e.g., Exs. J, L, M, P, Q to Bosman Affirmation, 5:03-CV-1329, Dkt. Nos. 117-11, 117-13, 117-14, 117-17, 117-18, respectively; Exs. B, D, E to Bosman Affirmation, 5:06-CV-949, Dkt. No. 41-2. Plaintiff had a disciplinary record before going on medical leave.

In October 2000, plaintiff was disciplined for transmitting personal text messages on police department equipment while on-duty during July through October of that year, including an incident involving officer Peggy Southwell. Plaintiff was penalized ten furlough days and later filed a grievance challenging the SPD's punishment. The penalty was thereafter reduced to a loss of two furlough days, and plaintiff agreed to not pursue legal action for that discipline. On August 22, 200, plaintiff was disciplined for making intimidating remarks about an officer.

On June 27, 2003, plaintiff was disciplined for allegedly harassing and threatening defendant Kaufman. Plaintiff lost three furlough days because of this conduct. On the same day, plaintiff was disciplined for insubordination after allegedly failing to obey an order from a sergeant to discontinue making excessive phone calls while on duty. As a result, plaintiff was suspended for ten days without pay.

In 2003, at a retirement party for a police officer, defendant Kerwin remarked to other police officers that the president of the Union, Jeff Piedmonte, could not be there because he was trying to persuade Paul Hanley, another Syracuse police officer, not to drive to plaintiff's house. Plaintiff heard about this comment from officer Timothy Gay. Plaintiff alleges that defendant Kerwin insinuated she was having an affair with Paul Hanley. Plaintiff reported the comments to the SPD EEOC officer. Defendants allege they investigated this comment. After interviewing defendant Kerwin, defendant Thompson determined defendant Kerwin did not state that plaintiff and Paul Hanley were having an affair. No discipline was imposed.

On May 30, 2004, plaintiff was injured in an on-duty car accident. In December 2004, plaintiff was told that she could no longer go to chiropractor appointments while working overtime. On July 26, 2005, plaintiff was told she could no longer go to physical therapy appointments during work. Plaintiff was also told that she could not use a SPD vehicle to attend medical appointments.

On October 7, 2005, plaintiff and defendant Douglas were involved in an incident at Nottingham High School. Plaintiff and defendant Douglas are the same rank. When plaintiff and defendant Douglas arrived, a male student was in handcuffs waiting to be taken to the Onondaga County Justice Center. Defendant Douglas claims that he put the student in the car and waited for plaintiff so she could follow him to the Justice Center. Plaintiff states that defendant Douglas ignored her the entire time and left without her. Defendant Douglas states that plaintiff did not follow him or assist with booking. Plaintiff claims she tried to follow defendant Douglas. For that incident, plaintiff was disciplined on January 5, 2006, directly before or after roll call in the presence of other officers, for not communicating with a fellow officer.

Plaintiff complained about defendant Douglas's failure to follow protocol in the Nottingham High incident and for derogatory comments he made about her to other officers. Defendant Douglas allegedly stated that plaintiff is "useless," "needs to retire," she has sex with everyone in the department, and she is a "psychotic cunt." Defendant Douglas admitted that he stated plaintiff was useless. None of these comments were said directly to plaintiff. No action was taken against defendant Douglas for these comments after the investigator determined that the complaint was unsubstantiated. No discipline was imposed on defendant Douglas for the incident at Nottingham High School.

In December 2005, defendant Galvin asserts that he heard rumors that plaintiff had exposed herself at a SPD Christmas party. Defendant Galvin made inquiries regarding this rumor. Plaintiff received a memorandum asking whether she had exposed herself. Plaintiff denied that this had occurred. Defendant Galvin never found anyone who said that Plaintiff exposed herself. No disciplinary action was taken.

On January 22, 2006, plaintiff found a memorandum written by defendant Douglas dated November 16, 2005. This memorandum was posted by someone on a bulletin board. Plaintiff removed the memorandum from the bulletin board. The memorandum was regarding the investigation of the Nottingham High School incident. In the memorandum, defendant Douglas claimed that Sergeant Long was not credible because he wanted to have a personal relationship with plaintiff. Defendant Douglas was suspended for five days without pay for writing the memorandum.

On March 20, 2006, plaintiff filed her second EEOC complaint. On or about June 16, 2006, plaintiff's attorney, Ms. A.J. Bosman, mailed a letter to Robert Stamey, Assistant Corporation Counsel for the City of Syracuse. In that letter, Ms. Bosman demanded documents from April 15 and April 16, 2006 relating to an incident with defendant Kaufman. On June 26, defendant Kaufman filed a complaint with Internal Affairs alleging that plaintiff made slanderous statements about him, including that he was involved in illegal gambling and had retained injuries while fighting with one of his children, and that Sergeant Long had illegally investigated him. On June 30, 2006, defendant Galvin sent a ...


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