The opinion of the court was delivered by: John G. Koeltl, District Judge:
The plaintiff, Jacquelyn White, a female correction officer at the Lincoln Correctional Facility in New York City ("Lincoln"), brings this employment discrimination action against New York State, the New York State Department of Correctional Services ("DOCS"), and individual defendants Joseph Williams, Nicholas Brocco, Salvatore Munafo, Ronald Haines, George Van Valkenburg, and Robert Murray, all of whom were employed by DOCS as supervisory officers at Lincoln during the relevant time period. The individual defendants are being sued in their individual capacities.
The plaintiff alleges that defendants New York State and DOCS discriminated against her on the basis of gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). The plaintiff also asserts a claim of retaliation in violation of Title VII against these defendants. In addition, the plaintiff asserts a claim under 42 U.S.C. § 1983 against the individual defendants claiming a violation of her Fourteenth Amendment right to equal protection resulting from gender discrimination.
The defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing all causes of action against them.
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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Behringer v. Lavelle Sch. For the Blind, No. 08 Civ. 4899, 2010 WL 5158644, at *1 (S.D.N.Y. Dec. 17, 2010).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper 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. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . ." Ying Jing Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Behringer, 2010 WL 5158644, at *1.
The following facts are undisputed unless otherwise noted.
The plaintiff is a female correction officer who began her employment with DOCS in 1986 at Bedford Hills Correctional Facility. (Am. Compl. ¶ 22.) In 1992, she transferred to Lincoln where, at all relevant times, she held the job post of Relief Officer for the Release Process Booth and Officer in Charge Post.*fn1 (Am. Compl. ¶¶ 22-23.) The plaintiff worked the 7 a.m. to 3 p.m. shift. (Pl.'s Counter Stmt. of Facts ¶ 4.)
On May 3, 2006, Lincoln posted a job for assignment entitled Release Process Booth/Officer in Charge, Post No. 0031, Tour II, Squad 8 ("the 2006 OIC position"). (Defs.' 56.1 Stmt. ¶ 33; Pl.'s 56.1 Stmt. ¶ 33.) The posting occurred after the former OIC, Correction Officer Marrero, retired around April 2006. (Defs.' 56.1 Stmt. ¶ 14; Pl.'s 56.1 Stmt. ¶ 14.) The job was posted for thirty days and specified that "male Correction Officers only" were permitted to bid for the post. (Defs.' 56.1 Stmt. ¶ 34; Pl.'s 56.1 Stmt. ¶ 34; Dawkins Decl. Ex. C.) The plaintiff alleges that, after Officer Marrero retired and approximately one month prior to the posting of the position, the job was offered to a female officer, Cokramer McBride, who had less seniority than the plaintiff. (Pl.'s Counter Stmt. of Facts ¶ 25; Dawkins Decl. Ex. E.) Officer McBride turned the job down. (Decl. of Rocco Avallone in Opp. to Defs.' Mot. for Summ. J. ("Avallone Decl.") Ex. A ("Pl.'s Dep.") at 72.)
The job requirements listed for the posting included, among other tasks: accounting for equipment, receiving briefing from previous tours, issuing inmate identification cards, and checking inmate rosters. (Dawkins Decl. Ex. C.) The posting also stated that the OIC would be required to "take and/or ensure that Urines are taken." (Dawkins Decl. Ex. C.)
Despite the posting's request for only male correction officers, the plaintiff applied for the position on May 3, 2006. (Defs.' 56.1 Stmt. ¶ 40.) The plaintiff testified that she sought the job because it allowed for weekends off and carried a higher position of authority. (Pl.'s Dep. 54.) However, the plaintiff's application was denied on June 3, 2006 and marked with the notations "unsuccessful" and "not allowed." (Defs.' 56.1 Stmt. ¶ 40; Pl.'s 56.1 Stmt. ¶ 40.) The position was awarded to Correction Officer Holland, a male officer with higher seniority than the plaintiff. (Defs.' 56.1 Stmt. ¶ 42; Pl.'s 56.1 Stmt. ¶ 42.) The collective bargaining agreement between DOCS and the Union requires that job assignments be made in accordance with seniority. (Dawkins Decl. Ex. KK.)
Prior to the posting of the 2006 OIC position, female officers had been allowed to bid for the OIC position. (Defs.' 56.1 Stmt. ¶ 21; Pl.'s 56.1 Stmt. ¶ 21.) Indeed, female officers had been awarded bids as OICs in the past. (Defs.' 56.1 Stmt. ¶ 21; Pl.'s 56.1 Stmt. ¶ 21.) The plaintiff herself had worked the OIC position many times when the officer who permanently held the position was on vacation or if she needed to swap with him. (Pl.'s Counter Stmt. of Facts ¶ 14.)
The defendants claim that the decision to re-designate the position as male-only was due to changing demographics at Lincoln that resulted in a shortage of male officers. Inmates at Lincoln are permitted to leave the institution for work release or home furloughs and, upon return, are subject to strip frisks and urine collection. (Dawkins Decl. Ex. FF ("Brocco Decl.") ¶ 4.) DOCS policies state that strip frisks and urine tests must be conducted by officers who are of the same sex as the inmates. (Defs.' 56.1 Stmt. ¶¶ 38, 39; Pl.'s 56.1 Stmt. ¶¶ 38, 39.) Therefore, when female officers worked the OIC position in the past, a male officer would be called in to perform a strip frisk or urine test when the need arose. (Defs.' 56.1 Stmt. ¶ 24; Pl.'s 56.1 Stmt. ¶ 24.)
The defendants argue that there were so few male officers at Lincoln that it became extremely difficult to conduct urine tests and strip frisks when females were working the OIC post. According to the defendants, over fifty percent of the officers at Lincoln were female in 2006 and, by 2007, the number had risen to sixty percent. (Defs.' 56.1 Stmt. ¶ 13.) Four officers staff Lincoln's inmate processing area, with two working at the processing booth and two at the processing gate.*fn2
(Defs.' 56.1 Stmt. ¶ 17; Pl.'s 56.1 Stmt. ¶ 17.) The defendants assert that the only male officers working the 7 a.m. to 3 p.m. shift were one permanent bid officer*fn3 and one male resource officer and that both had limited availability to conduct urine tests and strip frisks due to work obligations that frequently required them to travel outside Lincoln. (Defs.' 56.1 Stmt. ¶¶ 18-20.) The defendants allege that, as a result, officers from outside the processing area frequently had to be called in to conduct the strip frisks or urine tests, which created serious logistical difficulties.
Defendant Brocco testified that he considered several possible means of addressing the shortage of male officers. First, after viewing a list of officers scheduled to transfer into Lincoln in 2006 that indicated that eight of the ten officers were female, he asked the personnel office in Albany for permission to hire officers not on this list. (Brocco Decl. ¶ 6.) However, permission to do so was denied. (Brocco Decl. ¶ 6.) Next, he asked the Assistant Commissioner's office for permission to hire male officers on overtime but was told he could not. (Brocco Decl. ¶ 6.) Finally, he consulted the DOCS Labor Relations and Human Resources Departments, as well as the Director of the Office of Diversity Management, about designating the OIC position male-only and ultimately obtained approval to do so. (Brocco Decl. ¶ 10.)
On June 21, 2006, the plaintiff filed a grievance with the union challenging the designation of the OIC position as male-only. (Defs.' 56.1 Stmt. ¶ 43; Pl.'s 56.1 Stmt. ¶ 43.) The grievance was denied on November 22, 2006. (Defs.' 56.1 Stmt. ¶ 44; Pl.'s 56.1 Stmt. ¶ 44.)
In July 2006, the plaintiff filed a gender discrimination complaint with the New York State Division of Human Rights ("NYSDHR") that was cross-filed with the Equal Employment Opportunity Commission (the "EEOC"), claiming that she was denied the job because of her gender. (Defs.' 56.1 Stmt. ¶ 46; Pl.'s 56.1 Stmt. ¶ 46.)
On April 18 2007, the plaintiff sent a letter to union steward Holland complaining about gender discrimination and the designation of the OIC position as male-only. (Defs.' 56.1 Stmt. ¶ 45; Pl.'s 56.1 Stmt. ¶ 45; Dawkins Decl. Ex. M.) Joseph Williams, Superintendent of Lincoln, was copied on the letter. (Dawkins Decl. Ex. M.)
On September 18, 2007, the NYSDHR found no probable cause to believe that DOCS had engaged in the unlawful discriminatory practices alleged by the plaintiff. (Defs.' 56.1 Stmt. ¶ 48; Dawkins Decl. Ex. E.) The NYSDHR concluded that the designation of the OIC position as male-only was "suspect and not consistent with the actual work being done by female Correctional Officers." (Dawkins Decl. Ex. E.) However, it found determinative that the plaintiff had less seniority than the officer who received the position. (Dawkins Decl. Ex. ...