The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff commenced this action asserting claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("Human Rights Law"), 42 U.S.C. § 1983 ("Section 1983"), and New York state common law. Defendants move for summary judgment seeking to dismiss some of Plaintiff's claims. Plaintiff opposes the motion and cross-moves to amend her complaint. For the reasons that follow, Defendants' motion is granted in part and denied in part, and Plaintiff's cross-motion is granted.
The Court will apply the well-settled standards for deciding summary judgment motions in Title VII and other discrimination actions. See Fed. R. Civ. P. 56(c); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004)(§ 1983); Bracci v. N.Y.S. Dept. of Correctional Services, 2005 WL 2437029, at * 1 (N.D.N.Y. Sept. 30, 2005) (McAvoy, S.J.).
On June 19, 2007, Plaintiff received a one-year provisional appointment as a police officer for the Village of Cooperstown Police Department ("Department"). Plaintiff was deemed a probationary appointee until June 29, 2008. She was aware that permanent employment was conditioned on successful completion of the one year probationary term, including successful completion of a Basic Course for Police Officers (the "Police Academy").
b. Plaintiff's Performance
Defendants contend that Plaintiff's performance as a probationary officer was substandard in the areas of following the chain of command and obeying orders, asserting that Plaintiff often talked back to her superior officers, questioned their judgment, and argued with them over many issues including whether to follow direct orders. Plaintiff counters that her supervisor, Sergeant Mark Fassett, often instructed her not to follow the orders given by Chief of Police Diana Nichols, and that Sgt. Fassett instructed her not to communicate directly with Chief Nichols. There is no dispute, however, that on January 26, 2008, Plaintiff sent an email to Sgt. Fassett stating:
[A]fter your counseling with me Friday night I took a great deal of time to think about and research my problems/solutions. It is hard to fix a problem when you don't know what the real problem is. I am sorry for being mouthy. I am going to try my best to reform and look at my position with fresh educated eyes. I think I might understand the issues now, I really did not understand paramilitary . . . it will take me some time and I'm sure a slip up here and there (ha, ha) but you will see a change starting now!
Thanks, Your Rookie Def. Ex T (ellipsis in original).
Thereafter, Chief Nichols completed an employee evaluation stating that a "new understanding of chain of command [by Plaintiff] is becoming evident." Chief Nichols concluded that Plaintiff would make an excellent officer.
c. Sexual Harassment/Hostile Work Environment
Plaintiff alleges that during her employment, Fassett subjected her to an on-going course of sexual harassment and created a hostile work environment. The conduct, which began in August 2007, included unwanted sex-based statements and comments to Plaintiff. See Gilbert Aff. ¶¶ 5-10. According to Plaintiff, Fassett would regularly discuss his own sexual relationships and make comments about Plaintiff's anatomy and appearance. Id.
Fassett admits that shortly after Plaintiff began at the Department, he told her that he was engaged in a twelve (12) year sexual affair with his best friend's wife. Fassett 7/21/10 Dep., pp. 58-63, 69. Fassett asserts that he told Plaintiff this information, as well as other fictitious information, as a management test. Id.; Fassett 7/23/10 Dep., pp. 8- 9.*fn2
There is a dispute as to when and in what manner Plaintiff reported Fassett's conduct to the employer. At Plaintiff's Rule 50(h) hearing and in response to the question of whether Plaintiff reported Fassett's conduct to Chief Nichols, Plaintiff testified that in March 2008 she asked to talk to Nichols because she did not know what to do about Fassett's sex-based comments. Gilbert 50(h) Trans., pp. 78, 82. She and Chief Nichols then walked around Cooperstown for "almost two hours" during which Plaintiff "poured [her] heart out about everything that was going on" with Sgt. Fassett. Id. p. 78.
The timing of this first disclosure is consistent with Plaintiff's latter testimony. When asked at her deposition when she first spoke to Chief Nichols about Sgt. Fassett's course of inappropriate comments, Plaintiff responded that she did not recall or could not remember. Gilbert Dep. pp. 132-133. When pressed on this issue, Plaintiff testified that she had spoken to the Chief about Sgt. Fassett's "overall" conduct on several occasions while she was employed in the Department, id. p. 133,*fn3 but that the "first time that [she] put everything out on the table for [Chief Nichols] to know" was "slightly before the
Academy" in April 2008. Id. p. 133. Plaintiff also asserts in her affidavit that "[t]owards the end of February or beginning of March, 2008, I had a lengthy talk with Chief Nichols and told her what had been going on with Sgt. Fassett and his sexual comments and behavior." Gilbert Aff. ¶ 14.*fn4 Thus, Plaintiff's testimony is consistent that her first disclosure of Fassett's course of conduct occurred in March 2008 during a walk with Chief Nichols.
During this walk, Nichols purportedly responded to what Plaintiff told her by repeatedly stating: "'NFW', which is short for 'no fuckin way.'" Id.; see also Gilbert 50(h) Trans., p. 78 (testify to the same responses from Nichols). Plaintiff also told Nichols during the walk:
I'm telling you because I'm going to try to do something about it. . . . I'm going to try to handle it. The next time he makes a comment, I'm going to stand up for myself and make it stop. I just want you to know because of the whole sergeant/rookie thing.
Gilbert 50(h) Trans., pp. 79-80. Chief Nichols responded: "Okay, just keep me posted." Id. p. 80. Plaintiff interpreted Nichol's response as giving Plaintiff "an opportunity to fix" the situation herself. Id. p. 82; but see Gilbert Aff. ¶ 14.*fn5
The next day Fassett made a comment to Plaintiff about the size of her breasts. Id. p. 80. Plaintiff told Fassett: "I'm not taking these comments from you anymore. This is a professional business and you will treat me as a professional equal." Id. Plaintiff then went to Chief Nichols and told her what she had said to Fassett. Id. Chief Nichols separated Plaintiff and Fassett from working together because, according to Plaintiff, "we could not work together anymore because of how bad this had gotten." Id. p. 81.
Even though they were not working together, Fassett tried to speak to Plaintiff and, when she refused, he "wrote [her] up" and ordered Plaintiff not to speak to the Chief anymore. Id. A few days later, both Chief Nichols and Sgt. Fassett ordered me into the Chief's office. Sgt. Fassett stated that he could get "rid" of me even after I started the Academy.
Chief Nichols agreed and stated that "if your sergeant tells you it's night but it's day, it's actually night". The Chief obviously told him what I said and they were very intimidating and hostile to me. They cornered me and would not let me leave. Sergeant Fassett blocked the door. He first stood in front of it then took a chair and sat down still blocking the door. The Chief similarly positioned herself so that I could not leave. They verbally attacked me and accused me of sabotage of fellow officers. Gilbert Aff. ¶ 15.
Chief Nichols contends that the first and only time that she received a complaint from Plaintiff regarding a sex-based statement by Fassett occurred in October or November of 2007. See Nichols Dep. pp. 33-37. According to Nichols, both Plaintiff and Fassett independently reported to her an incident that occurred while Plaintiff was trying on a uniform shirt that had belonged to a woman who had left the Department. There is a dispute as to the actual colloquy that took place between Plaintiff and Fassett*fn6 but, based on what was reported to Nichols, Fassett made a statement to the effect that Nichol's breasts were larger than Plaintiff's breasts. Id. Plaintiff purportedly told Nichols not to investigate the comment and that Plaintiff would take care of it. Id. Despite Plaintiff's desire for Nichols to take no action, Nichols reported the comments to Village of Cooperstown Personnel Director, Mary Ann Henderson. Id. pp. 37-41. Henderson purportedly told Nichols that it probably "wasn't a big issue" but that Nichols should "work to keep the two of them separated more than  had been" done up to that point. Id. p. 41.*fn7
Nichols also contends that she interviewed three officers to determine if they observed Fassett acting inappropriately towards Plaintiff. Id. pp. 149-50.*fn8 Although none of the officers advised Nichols that they observed Fassett acting inappropriately towards Plaintiff, Nichols scheduled Plaintiff and Fassett to different shifts, limited their contact as much as possible in the Department, and directed Fassett not to engage in anymore conversations of that nature. Id. pp. 41, 149-50, 162-63.
d. Disparate Treatment - Terms and Conditions of Employment
Plaintiff contends that she was required to perform more administrative duties than male officers, that Fassett would yell at her and another female officer in the Department at the time, Lori Mearz, while refraining from yelling at male officers, and that Fassett prevented her and Mearz from speaking with the Chief while not imposing a similar restriction on male officers. Fassett denies that he treated Plaintiff or Mearz in a disparate fashion from male officers, and contends that Plaintiff performed the administrative duties that she requested to perform (preparing Uniform Crime Reports) and that male officers performed these duties before and after Plaintiff worked in the Department. See Fassett Aff. ¶¶ 3-5.
Mearz, who is no longer employed in the Department, does not recall whether male officers were required to perform the same type or amount of clerical duties that she and Plaintiff were required to perform. Mearz Dep., pp. 24-25. As to Fassett's yelling, Mearz remembered only one instance when Fassett treated her in a hostile or disrespectful manner (which occurred when she was a rookie officer and "second guessed" Fassett), and did not remember whether Fassett treated male officers in similar fashion or whether he treated Plaintiff differently than male officers. Id. pp. 62-63. Mearz characterized Fassett's position regarding conversations with the Chief as his insistence that officers follow the proper chain of command, but also noted that the Chief had an "open door policy" so the paramilitary-style chain of command requirements were not followed in the Department. Id. pp. 38-39.
Chief Nichols scheduled Plaintiff to attend the Otsego County Law Enforcement Academy on April 1, 2008. The physical agility test for admittance into the Police Academy consisted of the cadet completing a requisite number of sit-ups, push-ups, and a mile and one-half run. Plaintiff had broken her ribs the February before the Police Academy so she made a special effort to prepare for the agility test including hiring a personal trainer. The Chief also assisted Plaintiff in preparing for the physical fitness test by, on at least one occasion, going with Plaintiff to a local track to practice for the running portion of the exam.
Nevertheless, Plaintiff failed the running portion of the test at the Police Academy. Plaintiff was upset and contacted the Chief after she failed the test. The Chief invited Plaintiff to her home to have a glass of wine and to calm down. Another provisional appointee from the Department, Officer Cox, also failed the agility test at the Police Academy. The following day, Nichols contacted the Police Academy and inquired if Plaintiff and Officer Cox could retake the agility test but her request was denied. The Chief was advised that the Police Academy had adopted guidelines that year that prohibited cadets from retaking the physical agility test. Because candidates could not retake the test, Plaintiff and Cox were disqualified from attending the Police Academy that year.
Chief Nichols asserts that she made an exception to her normal policy of not permitting her officers to attend an outside academy and contacted three or four alternative academies for available space for Plaintiff because she was nearing the end of her probationary period. Nichols contends that she could not locate an academy that could accommodate Plaintiff. Plaintiff alleges, however, that she located two available academies that she could attend that summer and even offered to pay her own tuition, but that Nichols refused to allow her to attend these academies.
f. Termination of Employment
Defendants assert that because the next Otsego County Police Academy that Plaintiff could attend would not begin until almost a year after Plaintiff's one-year provisional appointment ended, and because the Department risked potential liability by keeping an officer on duty who had not completed the Police Academy within the one year provisional appointment period as required by New York General Municipal Law § 209-q,*fn9 the Chief recommended to the Personnel Director, Mary Ann Henderson, that Plaintiff forfeit her position with the Department. The Village of Cooperstown Board of Trustees subsequently voted in favor of requesting Plaintiff's resignation. On April 8, 2008, Plaintiff received a letter advising her that she must forfeit her position with the Village of Cooperstown because she was unable to meet the requirements of General Municipal Law § 209-q.
Plaintiff contends, however, that the custom in the Department was to extend provisional police officer appointments to allow completion of the Police Academy beyond the one-year limitation period by obtaining a waiver from the New York State Department of Criminal Justice Services. Plaintiff points to other Village officers whose provisional appointments were extended to allow completion of the Police Academy beyond one year from their appointments, and maintains that the ...