The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The plaintiff, Edna Mitchell-Miranda, filed this action alleging various claims against the City of New York ("the City"), the City Department of Corrections ("DOC"), the DOC Health Management Division ("HMD"), and individual DOC employees (collectively, "the City defendants"). She also alleged claims against the Correction Officers' Benevolent Association (the "Union") and Union Representative Allen Blake (collectively, "the Union defendants"). Initially, the plaintiff alleged claims of gender and disability discrimination based on individual incidents of alleged discrimination, as well as hostile work environment, and constructive discharge against some or all of the City and Union defendants in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000 et seq., the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and New York State Executive Law § 296 ("NYSHRL"). The plaintiff also alleged state law claims against the individual City defendants and the Union defendants for extreme emotional distress, and against Allen Blake for sexual harassment. At oral argument on December 10, 2010, the plaintiff stated that her only federal claims were those for hostile work environment and constructive discharge, eliminating her claims based on alleged individual incidents of gender or disability discrimination. (Hr'g Tr. at 30:13-18, 33:1-4.) Therefore, the plaintiff's remaining claims under Title VII and the ADA are limited to hostile work environment and constructive discharge.
All of the defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. The defendants assert that several of the plaintiff's individual discrimination claims are time barred or unexhausted, and that all of the plaintiff's federal and state claims are without merit.
The standard for granting summary judgment is well established. "The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists . . . ." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In determining whether that burden has been met, the Court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "It is not the province of the court itself to decide what inferences should be drawn . . .; if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper . . . ." Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000); see also Bank of Am., N.A. v. Vergest Ltd., No. 10 Civ. 4682, 2011 WL 92751, at *1 (S.D.N.Y. Jan. 11, 2011).
The following facts are undisputed unless otherwise noted.
The plaintiff was appointed to the DOC as a Probationary Correction Officer on June 2, 2005 and thereafter entered the Correction Academy. (City Defs.' 56.1 Stmt. ¶ 3.)*fn1 After graduating from the Correction Academy, the plaintiff was assigned to the Otis Bantum Correctional Center ("OBCC"), where she worked a schedule of four days on, followed by two days off, otherwise known as "the wheel." (City Defs.' 56.1 Stmt. ¶¶ 4-5.) As a Probationary Correction Officer, the plaintiff was required to serve a two-year probationary period. (City Defs.' 56.1 Stmt. ¶ 6.)
DOC Directive 2258R-A states that "a member who reports sick on twelve (12) or more work days within a twelve month period shall be classified as chronic absent." (City Defs.' 56.1 Stmt. ¶ 15.) This calculation excludes absences that occur while confined to any admitting hospital; the first absence from an injury in the line of duty; and, subject to such limitations as the DOC imposes, absences related to pregnancy. (City Defs.' 56.1 Stmt. ¶ 16; Canfield Decl. Ex. F ("Directive #2258R-A") at § II(A)(1).)
The plaintiff was absent for three days between September 2005 and December 16, 2005. (City Defs.' 56.1 Stmt. ¶ 28; Canfield Decl. Ex. H at 2.) Beginning December 17, 2005, the plaintiff missed eleven consecutive days. (City Defs.' 56.1 Stmt. ¶ 29; Canfield Decl. Ex. H at 2.) On or about December 20, 2005, the plaintiff was diagnosed with an upper respiratory infection. (City Defs.' 56.1 Stmt. ¶ 30.) Despite evidence of this infection, the plaintiff now alleges that the absences in December 2005 were because of her pregnancy, which she was unaware of at the time. (Canfield Decl. Ex. D ("Pl.'s July 20 Dep.") at 47:4-9, 18-23.)
In a memorandum dated January 10, 2006, the plaintiff was notified that she had been designated "chronic absent." (City Defs.' 56.1 Stmt. ¶ 39.) The plaintiff did not appeal her "chronic absent" designation although she had the right to do so under DOC appeal procedures. (City Defs.' 56.1 Stmt. ¶ 40; Directive #2258R-A at § III(B).) According to Directive #2258RA, once an officer is designated as chronic absent, the officer must arrive in person at the HMD to report sick unless the officer is too ill to report to HMD, in which case the officer may obtain a letter from a physician or hospital. (Directive #2258R-A at § III(I).)
The plaintiff testified that she learned that she was pregnant on or about January 14, 2006. (City Defs.' 56.1 Stmt. ¶ 43; Canfield Decl. Ex. C ("Pl.'s July 1 Dep.") at 54:18-20.) A few days later, the plaintiff met with Dr. Lowe at HMD for a scheduled appointment and informed him that she believed she was pregnant. (City Defs.' 56.1 Stmt. ¶ 44.) Dr. Lowe instructed the plaintiff to provide medical documentation of her pregnancy. (City Defs.' 56.1 Stmt. ¶ 44.)
On January 27, 2006, the plaintiff experienced pain and pressure and believed she was having complications with her pregnancy. (Pl.'s July 1 Dep. at 59:19-60:2.) She contacted HMD and informed Officer Robinson that she was going to the emergency room because of complications with her pregnancy. (City Defs.' 56.1 Stmt. ¶¶ 47, 49.) Officer Robinson informed the plaintiff that HMD had no record of her pregnancy and that the plaintiff was required to report to HMD by 10:00 a.m. on January 28, 2006 or she would be labeled AWOL. (City Defs.' 56.1 Stmt. ¶ 47.) In order to avoid being labeled AWOL, the plaintiff left the hospital emergency room and reported to HMD on the morning of January 28, 2006. (City Defs.' 56.1 Stmt. ¶¶ 52, 56; Pl.'s July 1 Dep. at 66:11-22; Canfield Decl. Ex. V.) While at HMD, the plaintiff met with Dr. Sach, who, after observing that the plaintiff had unhooked the IV from the hospital, allegedly said, "don't come back here. If we need you, we'll come to you." (City Defs.' 56.1 Stmt. ¶ 53; Pl.'s July 1 Dep. at 68:22-25, 69:8-9.)
The plaintiff returned to the hospital and learned that the fetus had no heartbeat. (City Defs.' 56.1 Stmt. ¶ 55.) On February 4, 2006, the plaintiff miscarried her pregnancy. (City Defs.' 56.1 Stmt. ¶ 58; Pl.'s July 1 Dep. at 74:4-9.) The plaintiff was out sick related to her pregnancy from January 27 to March 18, 2006. (City Defs.' 56.1 Stmt. ¶ 57.)
The plaintiff claims that she asked Allen Blake, the Union Representative for OBCC, for assistance in resolving issues with HMD relating to her treatment while pregnant and her designation as chronic absent, but that he refused to assist her because she would not respond to his sexual advances. (Pl.'s Am. Compl. ¶¶ 27-28.) The Union conducted an inquiry on the plaintiff's behalf in October 2006; the DOC reviewed the plaintiff's record and determined that the plaintiff's absences between December 2005 and January 5, 2006 were not related to her pregnancy. (City Defs.' 56.1 Stmt. ¶ 60; Union Defs.' 56.1 Stmt. ¶¶ 43-45; Pl.'s Resp. to Union Defs.' 56.1 Stmt. ¶¶ 40-49.) The plaintiff's chronic absent status was not changed. (City Defs.' 56.1 Stmt. ¶ 60.)
When the plaintiff returned to work in March 2006, she continued to work "the wheel," a rotating tour with four days on and two days off. (Defs.' 56.1 Stmt. ¶ 61.) The plaintiff claims that Captain Hewlett at OBCC discriminated against her by changing her schedule for October 21, 2006, preventing her from taking the promotional captain's exam. (Pl.'s Am. Compl. ¶ 24.) The plaintiff alleges that Captain Hewlett discriminated against her because she was a probationary officer and because of what had happened with her pregnancy. (Pl.'s July 20 Dep. at 87:5-12.) The plaintiff was not eligible to become a Captain in October 2006 because she was a probationary employee and a prerequisite for the position was a minimum of two years as a permanent Correction Officer. (City Defs.' 56.1 Stmt. ¶¶ 65-66.)
Between September 25, 2006 and March 19, 2007, the plaintiff claims, she applied for 27 steady posts. (City Defs.' 56.1 Stmt. ¶¶ 100-102; Canfield Decl. Ex. AA.) Because the plaintiff was designated as chronic absent, she was not eligible for a steady post as set forth in Directive #2258R-A. (City Defs.' 56.1 Stmt. ¶ 105.)
The plaintiff filed a complaint with the New York State Division of Human Rights (the "NYSDHR") on May 11, 2007. (NYSDHR Compl., annexed as Ex. P to Smith Affirmation and Ex. EE to Canfield Decl. ("NYSDHR Complaint").) The complaint's cover sheet charged the DOC with "an unlawful discriminatory practice . . . because of disability, sex, opposed discrimination/retaliation," while the complaint itself described the bases of discrimination as disability, pregnancy, and retaliation for opposing discrimination, without mentioning sex. (NYSDHR Compl.) The complaint itself also asserted that incidents of disability and pregnancy discrimination resulted in a hostile work environment. (NYSDHR Compl. §§ 3, 5.) The plaintiff specifically pointed to Captain Hewlett's refusal to give her time off to take the captain's exam and the plaintiff's inability to receive a steady tour or a steady post. (NYSDHR Compl. §§ 3, 5.) The plaintiff also described the incidents in January and February 2006 concerning her pregnancy and miscarriage and stated that Union ...