The opinion of the court was delivered by: Frederic Block Senior United States District Judge
BLOCK, Senior District Judge:
Plaintiffs Beatrice Adams, Nina Castleberry, Maria Monche, Tina O'Brien and Eldora Quick are current and former correction officers with the New York City Department of Corrections ("DOC"). They allege that during their employment with DOC, they suffered race and gender discrimination, a hostile work environment due to this alleged mistreatment, and retaliation for their complaints. They bring claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL") and 42 U.S.C. § 1983 ("§ 1983").
Defendant, the City of New York ("the City")*fn1 moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, its motion is granted in part and denied in part.
The following facts, which are taken from the parties' Rule 56.1 statements and supporting documentation, are undisputed unless otherwise noted. Where disputed, they are presented in the light most favorable to the plaintiffs. See, e.g,. Federal Ins. Co. v. American Home Assurance Co., 639 F.3d 557, 566 (2d Cir. 2011).
Plaintiffs Adams, Castleberry, O'Brien and Quick are female, African-American current uniformed members of DOC. Plaintiff Monche is a female, Hispanic former uniformed member of DOC who left her job on psychological disability retirement in 2007. All served as correction officers ("COs") during the period relevant to this lawsuit. Adams, Castleberry and O'Brien were assigned to Rikers Island Security Unit ("RISU"). Monche and Quick were assigned to the Robert N. Davoren Center ("RNDC"), an adolescent detention facility on Rikers Island. The alleged instances of discrimination occurred between approximately 2001 and 2007.
COs at RISU and RNDC are assigned to "posts"; their duties vary according to the locations of the posts. More senior COs are assigned to "permanent" posts. COs without permanent posts are said to be on the "wheel," a rotating position where they may be assigned to different posts on a daily basis. In addition to seniority, assignment to permanent posts is based upon attendance, disciplinary record, and work performance.
Plaintiffs describe assignment to a permanent post as a "benefit" that is "supposed to be accorded to them by virtue of their seniority and their performance records" because the wheel is "an assignment that results in the officer not knowing from day to day either the post or the tour upon which she will be serving." Pl's Mem. of Law at 3. Plaintiffs state that the wheel makes it "impossible to arrange one's life outside of work" and that the wheel "is even more difficult for women because it leaves supervisors free to assign them to posts where there are no bathroom facilities." Pl's Mem. of Law at 23. Adams states in her affidavit opposing defendant's motion for summary judgment that on the wheel "the tour commander is free to assign [COs] to whatever post is vacant," including particularly demanding or uncomfortable posts. Adams Aff. ¶¶ 9, 11. Castleberry stated in her affidavit that "[h]aving a steady post and tour is much better than being on the wheel because it makes it impossible to manage the rest of your life. On the wheel, you do not know from one day to the next whether or where you are going to be working." Castleberry Aff. ¶ 4. Plaintiffs do not present additional details on how the wheel operated or what negative consequences followed assignment to the wheel.
Between 2004 and August 2005,*fn2 Adams wrote several memoranda complaining about the conduct of her supervisors and filed a grievance with the Correction Officers Benevolent Association ("COBA").She complained that acting Warden Carmine LaBruzzo, a white male, assigned her to "the really miserable posts" while she was on the wheel. Adams Aff. ¶¶ 10, 11, 16. On August 12, 2005, Adams filed a complaint with the DOC Office of Equal Employment Opportunity ("EEO") alleging discrimination by her white male superiors because she had not received a permanent post.
Adams requested and was offered a permanent post in late 2005. However, she did not accept the post because it was a midnight shift. Adams applied for a permanent post again in 2006. She was offered a post, which she accepted, on April 26, 2006. That post was outside and required her to frequently lift and open a heavy gate. She developed an abdominal injury, and upon the advice of her doctor she requested a transfer in June 2006. In her affidavit, Adams states that LaBruzzo gave her two options: remain at her post or return to the wheel. In October 2006, she forfeited her post and returned to the wheel.
B. Castleberry's Experience
Castleberry was assigned to RISU in 2001 and received a permanent post immediately upon her arrival. On June 12, 2006, Castleberry filed a complaint with the EEO about discriminatory treatment by her white male supervisor, Captain Joseph Russo. She complained that Russo wrote her up frequently because she was a black woman and removed her from her permanent post in favor of a white male CO. On July 2, 2006 Castleberry filed a memorandum with the warden describing the same allegedly harassing conduct mentioned in her EEO complaint.
On July 17, 2006, Castleberry received five disciplinary citations from Russo for departing from her post, making false reports, failing to obey orders, disrespecting a supervisor and failing to work efficiently. These citations were reduced to a less serious disciplinary level known as a "corrective interview." As a penalty following her corrective interview, Castleberry forfeited her permanent post and returned to the wheel on August 12, 2006. Castleberry said in her affidavit that "corrective interviews usually do not result in the imposition of penalties," and "losing your tour and post as a consequence of a corrective interview is really an extraordinary punishment." Castleberry Aff. ¶¶ 42, 43.
Monche worked at a permanent post from 2004 through 2005. In December 2004 Monche's supervisor, Deputy Warden Raphael Olivo, gave Monche a gift basket containing skin lotions. For the approximately eight months that followed, according to plaintiffs, Olivo visited Monche's post almost "every morning" to inquire about putting the lotions on her. Pl's Mem. of Law at 13. He would touch her, make sexual remarks, "pin her to the wall and try to kiss her," and "hold her and refuse to let go of her." Pl's Mem. of Law at 14. Plaintiffs also refer to two occasions when Olivo undressed in front of Monche: he once removed his clothing and asked her opinion on his boxers; and in August 2005 Olivo made Monche sit in his lap, tried to kiss her, and removed his pants. On October 5, 2005, Monche filed a claim against Olivo with the EEO, claiming that Olivo sexually harassed her. The EEO found that the complaint was unsubstantiated because it lacked corroboration.
In September 2005, Monche's white male supervisor, Captain Matthew Boyd, filed disciplinary charges against her, claiming she failed to submit a report to him on time and that her report contained inadequate information. In exchange for the dismissal of those charges, she forfeited her permanent post. In her affidavit, Monche states that two white male supervisors, Warden Peter Curcio and Deputy Warden Robert Cripps, promised that after leaving that permanent post she would be assigned to a different permanent post, keeping her previous schedule, instead of being returned to the wheel. She did briefly receive such a post, but on October 6, 2005, Curcio and Cripps returned her to the wheel.
Monche alleges that Curcio and Cripps told her that she lost her new post because certain RNDC posts, including hers, were not awarded in compliance with DOC regulations, and therefore needed to be reposted. On October 18, 2005 Monche filed a complaint with the EEO against Cripps and Curcio, claiming that she was returned to the wheel in retaliation for her complaint against Olivo. She filed another complaint with the EEO, claiming retaliation for her prior EEO complaints, on November 11, 2005.
Before transferring to RISU in 2006, O'Brien worked at a permanent post at the North Infirmary Command ("NIC") beginning in 2005. Her white male supervisor required her to take sick inmates on hospital runs, while male officers remained at the facility "in case there was a problem." O'Brien Aff. ¶ 7. After being out sick for more than 12 days in one year, O'Brien received the disfavorable label "chronic sick" on March 24, 2006. As a result, she lost her permanent post and returned to the wheel at NIC. Her appeal of the "chronic sick" designation was denied. She then applied for and was granted a transfer to RISU, where she was placed on the wheel.
On June 23, 2006, her sixth day at RISU, O'Brien and a white male CO permitted an unauthorized civilian to pass through their gate post without presenting identification. O'Brien lost two vacation days and was involuntarily sent back to NIC. Her appeal of this punishment was denied. The male officer lost two days of "comp time," personal days acquired by working through lunch, and was suspended from his post. The City accounted for the difference between the male CO's punishment and O'Brien's by stating that, because of her "chronic sick" categorization, O'Brien should never have been transferred to RISU in the first place. On September 6, 2006, O'Brien filed a complaint with the Equal Employment Opportunity Commission ("EEOC") claiming that she received a harsher punishment than the male officer.
Quick was assigned to a permanent post in 2001. On June 28, 2005 Deputy Warden Matos summoned Quick along with a group of inmates to his office. Quick states in her affidavit that "[w]hen Matos opened the door, he was naked to the waist and the zipper of his pants was down.*fn3 Matos insisted that I come into the office but I refused until he put on his shirt and zipped up his pants." Quick Aff. ¶ 7. The group entered the office when Matos put on a shirt, and "Matos directed [Quick] to lock the door until he got completely dressed and [she] refused again . . . [Quick] felt disrespected, disgusted, offended and humiliated by Matos'[s] actions." Quick Aff. ¶ 8. Quick filed an EEO complaint against Matos on June 28, 2005. The EEO substantiated her claim because the inmates who were with Quick at Matos's office corroborated her story, but Matos received no punishment. Matos retired shortly after this incident.
On October 4, 2005, Cripps and Curcio removed Quick from her post and returned her to the wheel. They told Quick that her post must be reposted because it was awarded in a manner inconsistent with the DOC directive on assignment of posts. On October 13, 2005, Quick filed a complaint with the EEO against Curcio and Cripps, for retaliation. In February 2006, Quick was informed that her complaint did not "fall under the purview of the EEO office," and so she filed a complaint with the federal EEOC. Quick Aff.¶ 37.
While on the wheel, Quick was frequently out sick. In late 2005, due to concerns that her high-stress post exacerbated her high blood pressure, Quick requested and received a transfer to the "Academy."*fn4 In mid-2006, Quick was involuntarily returned to RNDC. Her applications for permanent posts at RNDC during 2006 and 2007 were all denied. Her request for a transfer from RNDC to Elmhurst Hospital Ward, where she was on the wheel, was granted in October 2007. Also in October 2007, Quick was categorized as "chronic sick" because she took more than 12 sick days in the previous year.
F. General Allegations of Racist and Sexist Environment
Plaintiffs provide evidence which they believe tends to enhance their account that they suffered a hostile, or at least suboptimal, work environment at RISU and RNDC. For example, in October 2005 Cripps and Curcio announced at roll call that COs should refer to them as "daddy" and "uncle" and should "dance to the drum beat of their masters." In November 2004, Boyd told a black female CO that she should "kiss his lily white ass" and told a black inmate that "you don't want to see what a white boy from Long Island can do to you." Boyd also "reduced Monche to tears one day at roll call by screaming at her derisively." Plaintiffs allege that it is commonplace for supervisors to berate female COs in a demeaning fashion in front of their peers. At the funeral of a black CO, white officers joked about burying the CO "the way slaves were" buried. A white male supervisor said that women belong "at home barefoot and pregnant."*fn5 Pl's Mem. of Law at 7-8.
Plaintiffs also note that certain posts at Rikers Island do not have
toilets readily accessible. COs at those posts must radio for another
officer to temporarily take over their post before taking a break to
use the bathroom. Although the City claims that the wait varied "from
no wait to ten to fifteen minutes," plaintiffs claim that female
officers typically waited an uncomfortably long time for a bathroom
break. Def's 56.1 Stmt ¶ 18; Pl's 56.1 Stmt
¶ 18. Adams stated in her deposition that the delay in sending a CO to
cover your post depends upon "if the relieving officer likes you." Ex.
B, Adams Tr. 44:5-8. Certain (primarily male) officers at these posts
urinate into bottles rather than requesting a bathroom break, and
plaintiffs claim that posts were often littered with bottles of urine.
Plaintiffs contend that the Rikers bathroom policy disproportionately
affected female COs because it is easier for men to urinate without
the privacy of a bathroom, for example by urinating into bottles, than
it is for women. Adams states in her affidavit that in early 2008, her
supervisor delayed sending a relieving officer so that she could take
a bathroom break. Because Adams had a medical condition and could not
wait she left her post before a CO arrived, but still did not make it
to the bathroom before she urinated on herself. Adams Aff. ¶ 48.
Castleberry states in her affidavit that on one occasion in July 2006
she waited 40 minutes before being permitted to use the bathroom.
Castleberry Aff. ¶ 29. Quick states in her affidavit
throughout 2005 her supervisor would frequently refuse
to give her bathroom breaks, claiming that there were no officers
available to relieve her. Quick Aff. ¶ 30.
All five plaintiffs base their discrimination claims on their assignment either to the wheel or to undesirable permanent posts other than those they requested. All of the plaintiffs were at some point assigned to the wheel. Several of the plaintiffs--Monche, Castleberry and O'Brien--claim that they were coerced into forfeiting their permanent posts after they received unfairly applied disciplinary charges. Adams and O'Brien claim that, even when they were assigned to permanent posts, they received very bad post assignments: Adams worked at a physically challenging outdoor gate, while O'Brien received "hospital run" duty requiring long hours and exposure to sick inmates.
A. Standards Governing Discrimination Claims
Plaintiffs' Title VII and NYSHRL discrimination claims are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Second Circuit describes this framework as follows:
[T]he plaintiff bears the initial burden of establishing a prima facie case of discrimination . . . . If the plaintiff does so, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its action . . . . If such a reason is provided, plaintiff may no longer rely on the presumption raised by the prima facie case, but may still prevail by showing, without the benefit of the presumption, that the employer's determination was in fact the result of . . . discrimination.
Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008) (citations and internal quotation marks omitted).
To state a prima facie case of employment-related discrimination, a plaintiff must show (1) membership in a protected class; (2) that she was qualified for her positions; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See, e.g., Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). It is undisputed that plaintiffs, as non-white females, are members of a protected class. It is also undisputed that plaintiffs were qualified for their positions. The validity of plaintiffs' claims therefore turns on the third and fourth elements.
To qualify as an adverse employment action, the action complained of must be "materially adverse." Id. "To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabaya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks omitted). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a ...