The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Plaintiff Diane Davis is a New York City Police Detective, and alleges she was subjected to a hostile work environment, gender-based employment discrimination, and retaliation. She claims violations of Title VII, 42 U.S.C. §§ 1983, 1985, New York State Human Rights Law (SHRL), and New York City Human Rights Law (CHRL). Defendants now move for summary judgment dismissing all claims. The motion is granted in part and denied in part.
On August 31, 2005, Davis was a Detective Third Grade with the NYPD Internal Affairs Bureau ("IAB") group 22, located in the Bronx. On that day she found a pair of soiled women's panties in her drawer. Affidavit of Plaintiff Diane Davis in Opp. to Def.'s Mot. for Summ. J. ("Davis Aff."), Ex. E at 7. Davis asked other officers about the incident, and ultimately received the explanation that the panties had been placed there by defendant Sgt. Robert Rivera because he thought they belonged to her. See Defendants' Rule 56.1 Statement in Supp. of Mot. for Summ. J. ("Defendants' 56.1") ¶ 17. Feeling upset and victimized, Davis reported the incident up the chain of command and the NYPD Office of Equal Employment Opportunity ("OEEO") was notified. Davis Aff., Ex. E at 7-9; Defendants' 56.1 ¶ 25. The incident was investigated by a special investigations unit within the IAB, which concluded on September 20, 2005 that no harassment claim had been substantiated. Defendants' 56.1 ¶¶ 24, 26.
On the day of the incident, Davis met with Captain Pignataro and told him she wanted to transfer as a result of the incident. Davis Aff., Ex. E at 176. She was transferred to a different group, but one in the same bureau, same building and same floor as the group where the incident occurred. Despite multiple subsequent efforts to be transferred to different posts, she was ultimately transferred at the end of September to yet another IAB group, albeit one in Manhattan rather than the Bronx. Davis Aff., Ex. E at 135-48; Defendants' 56.1 ¶ 28; Complaint ¶ 35.
Following the incident, superior officers would direct profanities at her when they passed her in the hall. Davis Aff., Ex. E at 107, 215.*fn1 Word of the panty incident circulated among co-workers, as did word of the related complaint. Id. at 28, 123-24. Colleagues were told to watch out for Davis because she was a trouble maker and liked to file EEO complaints, and Davis asserts that this lead other detectives to avoid work assignments with her. Id.
Davis claims that from 2006 to 2008, at least 155 detectives of her rank were promoted while she was not, and many of these were less senior than her. Plaintiff's Rule 56.1 Counterstatement ("56.1 Counterstatement") ¶ 46. Moreover, she claims, she was passed over despite having been twice recommended for promotion. Id. ¶ 45.
Plaintiff filed a statement with the United States Equal Employment Opportunity Commission alleging discrimination against the NYPD, and received her right to sue letter on October 31, 2008. Defendants' 56.1 ¶8. She commenced this action on January 23, 2009.
A court will not grant a motion for summary judgment pursuant to Rule 56 unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, (1986). The Court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor. Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). Courts must use particular caution in dismissing discrimination claim on summary judgment because the employer's intent is often at issue and requires careful factual analysis appropriate for the jury. See Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008).
Defendants claim that any Title VII claim premised on events prior to September 28, 2007, is barred by the applicable 300 day statute of limitations, and any claim under SHRL, CHRL and section 1983 premised on events prior to January 23, 2006, is barred by the applicable 3 year statute of limitations.
Under the continuing violations doctrine, events that fall outside the statutory time period may be considered in support of a hostile work environment claim provided that at least one act supporting the claim occurs within the time period. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002); see alsoPatterson v. County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir.2004). This does not apply to "discrete" incidents of discrimination that are alleged independently of a hostile work environment claim. See Morgan, 536 U.S.at 114; Barbaro v. U.S. ex rel. Federal Bureau of Prisons FCI Otisville, 521 F.Supp.2d 276, 281 (S.D.N.Y. 2007). Both "failure to promote [and] denial of transfer" are examples of such "discrete" ...