MEMORANDUM-DECISION AND ORDER*fn1
Plaintiffs Jeanne C. Edwards, Sandra Soria and Carole L. Huppert filed this suit on July 24, 2008, alleging, pursuant to 42 U.S.C. § 1983, violations their right to equal protection under the 14th Amendment. Dkt. No. 1. Plaintiffs also allege violations of Title VII of the Civil Rights Act of 1964, having received a right to sue letter from the United States Justice Department dated October 9, 2008. Pls.' Statement of Material Facts ("PSMF") (Dkt. No. 18) ¶4; Dkt. No. 19, Ex. 14. Plaintiffs name as Defendants Steven Gorsline, Tim Williams and the City of Kingston, New York. After the close of discovery, Defendants filed a Motion for summary judgment on October 15, 2009. Dkt. No. 16. For the following reasons, Defendants' Motion is denied in part and granted in part.
This case arises from allegations of a hostile work environment and gender discrimination occurring within the Department of Public Works ("DPW") of the City of Kingston ("City"), where the Plaintiffs were or remain employed. Jeanne Edwards ("Edwards") was an employee from approximately October 5, 2005 to June 29, 2009; at the time her Complaint was filed, she still worked for DPW as a code enforcement officer. Def's. Statement of Material Facts ("DSMF") (Dkt. No. 16) ¶1. Sondra Soria ("Soria") and Carole Huppert ("Huppert"), both still employed by the City, have worked for the DPW since 2004 and 2002, respectively. Id. ¶¶ 2-3; Plts.' Response to Def's Statement of Material Facts. ("PRSMF") (Dkt. No. 18) ¶¶ 1-3. Defendant Steve Gorsline ("Gorsline") was employed as the Superintendent of the DWP for the period relevant to this litigation, and Defendant Tim Williams ("Williams") was employed with the DWP from 2002 through March 2008 as a Senior Clerk and from March 2008 through August 2008 as Assistant Superintendent. DSMF ¶¶ 5-8. Defendant City of Kingston is a municipal corporation under the laws of New York and is located in the County of Ulster, New York. Id. ¶ 4. The DPW is one of the fourteen departments of the City, which is headed by a Mayor, non-party James Sottile, who exercises executive authority. PSMF ¶¶ 5-7. The three female Plaintiffs in this case allege a series of events and workplace conditions, along with inadequate actions by the City, which they assert constitute gender discrimination, sexual harassment, and retaliation actionable under § 1983 and Title VII. There are extensive factual disputes between the parties concerning the alleged acts which give rise to Plaintiffs' claims; Defendants predominantly deny the substance of those allegations or the meaning attributed to them by Plaintiffs.
Mayor Sottile hired Edwards on a provisional basis in 2005, and she became a permanent employee upon passing a civil service test. Plts.' Counter Statement of Material Facts ("PCSMF") (Dkt. No. 18) ¶¶ 15-17. Edwards, a breast cancer survivor, had undergone a mastectomy prior to her employment with the City. According to Edwards, she heard male co-workers in 2006, including Superintendent Gorsline, discussing Plaintiff Huppert's breasts, betting on characteristics of her undergarments, and discussing how they stood under a stairway to peer up at Huppert. Id. ¶19. She alleges that on another occasion Defendant Williams and a non-party supervisor spoke about "69," and that Defendant Gorsline proceeded to explain the sexual connotationof term to her, much to her embarrassment. Id. ¶ 20. Edwards also alleges that Gorsline made various "demeaning comments" about Huppert. Id. ¶ 21.
According to Plaintiff Edwards, in October 2007, Gorsline had the Mayor appoint non-party Michelle Feliciano as a second code enforcement officer, with whom Plaintiff alleges that Gorsline began an affair. Edwards asserts that the Mayor did not know if Feliciano, a 23 year old woman who had previously been a waitress, was qualified and that he did not interview anyone else for the position, which was created for her. Id. ¶¶ 23-27. Moreover, Edwards states that Felicano never applied for the code enforcement position, believed that she had been brought to the Mayor's office to become a temporary receptionist, and did not know what code enforcement work entailed. Id. ¶¶ 27-28. Feliciano received extensive preferential treatment according to Edwards, and, although failing the civil service test, was allowed to stay to retain her position for approximately a year. Id. ¶¶ 31-35. When the City's Safety Officer, Lawrence Brigati, told the Mayor that Gorsline's private relationship with Feliciano was interfering with the DWP workplace, Mayor Sottile is alleged to have responded that the matter was non of his business. Id. ¶ 38.
In December 2007, Edwards recounts that Defendant Williams walked to her desk with oranges tucked in his shirt to emulate breasts; she alleges that Williams did this sort of "joking around" in the office on other occasions, including pretending to wear a brassiere. Id. ¶¶ 39-40, 43. Edwards expressed her distress with Williams' conduct, which she concluded referenced the fact that she did not have two breasts. Id. ¶ 41. She alleges that Defendant Gorsline knew about this incident but did not speak to Williams about it. Id. ¶ 42. Edwards also alleges that Williams would 'take photos of people and then 'put big penises on them' and 'then show everybody.'" Id. ¶ 44.
In March 2008, Edwards recounts an incident wherein she entered the DPW office and Williams threw at her a fake or artificial breast, which had been extant in the office at a number of previous times and read "suck off the government tit." Id. ¶ 45. Thereafter, Edwards threw the object back and withdrew to the bathroom in shock and distress; later, Edwards told Defendant Gorsline that she wished to filed a sexual harassment complaint. Id. ¶ 53. Gorsline, who was in attendance and participated in throwing the object, recalls that such activity was consistent with "the way the office was" and that Edwards was a willing participant. Id. ¶¶ 47-51; Dkt. No. 19, Ex. 1. In Gorsline's view, the fake breast was a "fixture in the office just like the painting on the wall." See Dkt. No. 19, Ex. 1. The Mayor, in his deposition, states that he then received a call from Gorsline informing him of the incident and that Edwards was offended. Gorsline, however, denies that he spoke to the Mayor about the matter. PCSMF ¶¶ 54-57; Dkt. No. 19, Ex. 1, 3. Approximately one month after the incident, Plaintiffs allege that a female temporary worker discovered the fake breast in a drawer at the office, which allegedly upset Edwards and caused her to begin crying and yelling "enough is enough." PCSMF ¶¶ 60-61. She asserts that she complained that the office was a sexually hostile environment that made it difficult for her to perform her job, but Gorsline and other city officials took no disciplinary action against Williams or any other action to rectify the situation. Id. ¶¶ 62-65. Rather, only weeks after the throwing incident and after Edwards complained to the New York State Division of Human Rights about Williams' conduct, Gorsline promoted Williams to Assistant Superintendent, making him Edwards' supervisor. Id. ¶ 66. Then, after the Mayor learned of Edwards' Human Rights Complaint, he appointed Williams, whose role in the incident was known to the Mayor, to a new three-person sexual harassment panel. Id. ¶ 67.
In April 2008, Edwards attended a meeting of the City of Kingston Human Rights Commission, where she explained her experiences at DWP. Non-party Tawana Washington, a staff person for the Commission, expressed that there was little or nothing that could be done by the Commission because the harassing persons worked for the Mayor, but that Edwards should bring her complaint to Albany. Id. ¶ 71. Following Edwards' communications with the Commission and complaints made through legal counsel in May, she alleges that "she has been retaliated against: job responsibilities have been taken away from her, she has been excluded from a work area she needs to access to do her job... she has also been selectively written up by defendant Williams for no cause; her office was moved to an inferior space." Id. ¶ 73. After this suit was filed, Edwards alleges that the women were separated from the men at DPW, and Edwards was relocated to a dirty, unventilated room in disrepair situated between two bathrooms. Id. ¶¶ 77-78. Edwards protested these conditions, which she alleges Tawana Washington called "disgusting" and "unacceptable." Also after the lawsuit was filed, the Mayor converted Edwards from a full-time to part-time position, which is alleged to have been the only position to have been so altered. Id. ¶¶ 81-83. The Kingston Common Council overrode that decision, however, retaining money in the City budget through the 2009 fiscal year for Edwards' job. But on June 29, 2009, the Mayor terminated Edwards' employment, while eliminating no other jobs at that time. Id. ¶¶ 84-88. Subsequently, months after the firing and a week before her deposition, Edwards alleges that the Mayor offered her a position which she had not applied for as a laborer for the City. Id. ¶ 89.
In March 2007, Plaintiff Soria began working in the DPW while continuing to serve, when called, at her previous job with City Bus. Among approximately 20 drivers employed by the City, Soria is the only female, and it is understood that since some time in the 1970s Kingston has not otherwise had a female driver. Id. ¶¶ 92-94. Edwards alleges that she heard male co-workers complain when Soria when transferred to the DPW, and that DPW staff indicated that they would "work her and they'll get rid of her." Id. ¶ 97. Soria alleges that non-party Ricky Kinyon, a co-worker at DPW, "used to tell me that I got the job because I went under the Mayor's desk...." Id. ¶ 97. Co-workers are alleged to have told Soria that she was taking a man's job and thus should accept the working environment, which included frequent discussion of sex and which made Soria uncomfortable. Id. ¶¶ 101, 104-105. Allegedly, Kinyon persisted in touching and making sexually charged remarks to Soria despite demands for him to stop and statements that she would tell his wife of his conduct. Id. ¶¶ 98-99. On one occasion, Kinyon threw a fake penis at her, an incident that Gorsline learned of the following year and did not speak about with Kinyon. Id. ¶¶ 102-103. Soria recounts that the City trucks sometimes had pornography in them, one had a nude calendar, and the DPW garage had a number of scantily clad images of females displayed. Id. ¶¶ 108-110.
Soria asserts that because she had not received any training on sexual harassment, she did not identify the environment at DWP as involving such. The DPW facility did not post any information addressing sexual harassment. Id. ¶¶ 106-107. With respect to the pornographic and sexual material, Defendant Gorsline was not aware of a policy against it, and, accordingly, he did not seek to have any of it removed. Id. ¶¶ 112-114. Additionally, Soria alleges that she was subject to bullying by male DPW employees, which Gorsline did nothing to address. Soria went to the Mayor about a specific incident of bullying involving non-party Mark Jackson; the Mayor did not communicate about it again with Soria, but Gorsline and Jackson later met with her, at which time Jackson is alleged to have curtly apologized and then exited. Id. ¶¶ 118-125. Afterward, non-party Mike Williams, another DPW employee, told Soria that she should do something to stop Jackson from harassing all the women at the Department. Id. ¶¶ 127-128.
Soria then met with Tawana Washington, who informed her that she should make a formal complaint and attend the next meeting of the Kingston Human Rights Commission. Id. ¶ 129. Soria contacted Plaintiff Huppert, whom she "barely knew," and Huppert related that Jackson harassed her, as well, and that Gorsline blamed her rather than confronting the problem. Id. ¶¶ 130-131. Soria communicated at this time with Plaintiff Edwards, who confirmed that Jackson harassed her without any intervention by DPW or City authorities. Id. ¶ 132. Soria and Edwards proceeded to attend the Human Rights Commission meeting on April 9, 2008, where they explained the circumstances of their workplace. Plaintiffs allege that the commissioners commented that the conduct constituted sexual harassment; stated that, in effect, they lacked jurisdiction or ability to directly help or investigate; recommended the women obtain legal counsel from outside Kingston; and advised them to bring their complaints to the New York State Division of Human Rights in Albany. Id. ¶¶ 135-138, 143. At the time of conduct giving rise to this suit, Soria asserts that the City had no policy governing sexual harassment, provided no staff training on the subject, and had not publicly designated a person to whom sexual harassment complaints should be made; Washington corroborates that, as of May 2008, the City did not provide staff training on sexual harassment. Id. ¶¶ 145-146. Only after the filing of Plaintiffs' Complaint did the Mayor institute sexual harassment training for City employees. Id. ¶ 155.
Soria alleges that some retaliation has occurred after putting the Mayor on notice of her sexual harassment complaint on May 6, 2008. She asserts that her lunch and breaks are scrutinized; her co-workers and foreman do not speak to her and "project a highly negative attitude;" overtime opportunities have abruptly ceased but are given to male co-workers; her work with City Bus ended; and she found a pornographic movie ...