The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Genevieve Drees ("Drees") brings this employment discrimination action alleging a hostile work environment and retaliation on the basis of sex under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000-e, et seq., New York State Executive Law §§ 290 et seq. ("NYHRL") and the First and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983 against defendants the County of Suffolk, Sergeant Carparelli, Sergeant Dacuk, Sergeant Eble, Captain John Hanley and Sergeant William Todoro (collectively, "defendants").
On June 27, 2007, the Court denied defendant's motion to dismiss with regard to plaintiff's Title VII and Section 1983 claims against the County, and with regard to plaintiff's NYHRL claims against Sergeant Carparelli, Sergeant Dacuk, Sergeant Eble, Captain Hanley and Sergeant Todoro in their individual capacities. The Court granted the motion as to the other federal and state claims.
Following the completion of discovery, defendants now move for summary judgment on all remaining claims. For the reasons set forth herein, defendants' motion is granted in part and denied in part. Specifically, defendants' motion is (1) granted as to the NYHRL claims as time-barred; (2) granted as to plaintiff's gender-based hostile work environment claim under Title VII and Section 1983 to the extent that it is based upon alleged conduct from 1991-1997; (3) denied as to plaintiff's retaliation claim under Title VII and Section 1983, including a retaliatory hostile work environment claim, based upon her alleged demotion in 2005 and other alleged adverse actions taken by defendants in 2004 and 2005.
On July 7, 2006, plaintiff filed the instant action. On September 19, 2006, plaintiff filed an amended complaint. On June 27, 2007, the defendants' motion to dismiss was denied in part and granted in part.
On May 9, 2008, defendants filed this motion for summary judgment. On July 11, 2008, plaintiff filed her opposition to defendants' motion. On August 1, 2008, defendants filed their reply. Oral argument was held on September 3, 2008, at which time the parties were given an opportunity to submit supplemental briefing on the issue of plaintiff's waiver. Defendants submitted that briefing on September 29, 2008, and plaintiff submitted additional briefing on October 24, 2008. The Court has considered all of the parties' submissions.
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2004). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted). The Second Circuit has provided additional guidance regarding summary judgment motions in discrimination cases:
We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases."). Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001)).
Defendants argue that summary judgment should be granted in their favor because "the Plaintiff is barred from any legal claim because she signed releases [in 1997, 1998 and 2005] barring future legal action against the Defendant." (Defendants' Letter Brief, dated September 26, 2008, at 1.) "New York law provides that this Court must enforce contract provisions clearly expressing the intent of the parties." Beth Isr. Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 580 (2d Cir. 2006) (citing Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 (N.Y. 2002) ("[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.")). With respect to the 2005 release, it states that the employee "agrees to waive any and all rights she may have . . . concerning the matters of her employment as well as any rights she may have pursuant to the Collective Bargaining Agreement between the County of Suffolk and the Association of Municipal Employees, Inc., only reserving the right to proceed against the County with respect to a breach of this stipulation in an arbitration proceeding." (Defendants' Memorandum of Law, Ex. H.)
Plaintiff, however, argues that those releases are not valid because they are not clear and unambiguous on their face and because plaintiff did not enter into them knowingly and voluntarily, as required. (Plaintiff's Letter Brief, dated October 24, 2008.) As set forth below, the Court concludes that there are disputed issues of material fact that preclude summary judgment on the waiver issue.
The parties agree on the applicable legal standard. "A plaintiff may waive a statutory claim for discrimination as long as it is done knowingly and voluntarily." Shain v. Ctr. for Jewish History, No. 04-CV-1762 (NRB), 2006 WL 3549318, at *3 (S.D.N.Y. Dec. 7, 2006) (citing Bormann v. AT&T Commc'ns, Inc., 875 F.2d 399, 402 (2d Cir. 1989) (dismissing ADEA claims), superseded by statute, Older Workers Benefits Protection Act, 29 U.S.C. § 626(f), as recognized in Am. Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111 (1st Cir. 1998)); Branker v. Pfizer, Inc., 981 F. Supp. 862 (S.D.N.Y. 1997) (dismissing NYHRL claims). In determining whether a waiver was "knowing and voluntary," a totality of the circumstances test is applied. Branker, 981 F. Supp. at 865 (citing Bormann, 875 F.2d at 403; Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437-38 (2d Cir. 1998)). Factors to be considered include: "(1) the plaintiff's education and business experience, (2) the amount of time the plaintiff had possession of or access to the agreement before signing it, (3) the role of plaintiff in deciding the terms of the agreement, (4) the clarity of the agreement, (5) whether the plaintiff was represented by or consulted with an attorney, and (6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law." Bormann, 875 F.2d at 403 (quotations and citation omitted); accord Livingston, 141 F.3d at 438. The Bormann factors are not exhaustive and not every factor must be in defendants' favor for the release to be found knowing and voluntary; rather all of the factors must be examined under the totality of the circumstances. See Bormann, 875 F.2d at 403; accord Nicholas v. NYNEX, Inc., 929 F. Supp. 727, 732 (S.D.N.Y. 1996). Moreover, under New York law, which applies a lesser standard, "a release need only be clear, unambiguous, and knowingly and voluntarily entered into." Shain, 2006 WL 3549318, at *8 (citing Nicholas, 929 F. Supp. at 732); but see Goode v. Drew Bldg. Supply, Inc., 697 N.Y.S.2d 417, 417-18 (N.Y. App. Div. 1999) ("We reject the contention that the validity of that release is to be determined in accordance with . . . the totality of the circumstances standard applicable to Federal discrimination claims.") (citations omitted).
1. Plaintiff's Education and Business Experience
Plaintiff has a high school equivalency diploma and has taken 12 credits of college level courses. (Drees Dep., at 12-13.) Plaintiff has worked for the Suffolk County Police Department for 17 years. Before that, plaintiff worked as a Mental Hygiene Therapy Aide for 12 years at Central Islip Hospital. Defendants argue that this level of education and experience "is sufficient to show that she had an understanding of the Agreement's terms." (Defendants' Letter Brief, dated September 26, 2008, at 3.) However, plaintiff has submitted an affidavit stating the following: (1) she has "never been trained in business, management, or the law;" (2) has "never held any kind of business-related employment or law-related employment;" and (3) has "never been a manager or supervisor in any work setting." (Drees Affidavit, at ¶¶ 3-5.) Thus, plaintiff argues that she "did not have sufficient business training or experience to have made a knowing and voluntary waiver." (Plaintiff's Letter Brief, dated October 24, 2008, at 3.) See, e.g., Glugover v. Coca-Cola Bottling Co. of New York, Inc., No. 91 Civ. 6331 (PKL), 1993 WL 312269, at *9 (S.D.N.Y. Aug. 12, 1993) ("As for the first factor, although [plaintiff] has some college education, it is unclear whether she was sophisticated enough in business affairs to understand the terms of the release.")
2. The Amount of Time Plaintiff had Possession of or Access to the Agreement before Signing It
Defendants note that each release "specifically states that she had time for 'sufficient consultation.'" (Defendants' Letter Brief, dated September 26, 2008, at 3.) Plaintiff, however, in her affidavit asserts that she had five minutes or less to review boilerplate language presented to her:
At no point was I given the opportunity, either directly or indirectly, to negotiate what terms and language would be in the stipulations. I was forced to sign off on the stock language which was presented to me by the County of Suffolk, my union, and their lawyers. I had five minutes or less to review the stipulations before I signed them.
(Drees Affidavit, at ¶ 6.)
3. The Role of the Plaintiff in Deciding the Terms ...