The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiffs Terra Ross-Caleb, ("Ross-Caleb") Alfonda Crawford, ("Crawford") Jewanta Desardouin, ("Ms. Desardouin") Theresa Smith, ("Smith") and Jean Claude Desardouin ("Mr. Desardouin") all current or former employees of the defendant City of Rochester ("the City"), bring this action for employment discrimination against the City and defendant Vincent McIntyre ("McIntyre"), claiming that they were discriminated against on the basis of their gender, were retaliated against, or were subjected to a hostile work environment. Plaintiffs bring causes of action pursuant to Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C. § 2000(e), et seq.); Section 1983 of Title 42 of the United States Code, and the New York Human Rights Law.
Defendants now move for summary judgment against the plaintiffs on all causes of action. For the reasons set forth below, I grant defendants' motion for summary judgment in its entirety, and I dismiss plaintiffs' claims with prejudice.
This action is brought by five current or former employees of the
City of Rochester, all of whom claim that they were subjected to some
form of gender discrimination or retaliation by the defendants during
their employment. The employees were employed as security guards for
the City of Rochester, or as a security guard supervisor.*fn1
Of the five plaintiffs, two were fired, two remain working
for the city, and one claims that she was constructively discharged.
Although some of the factual allegations contained in the Complaint
are common to some of the plaintiff's, each plaintiff alleges distinct
and separate allegations of discrimination and/or retaliation. Each
plaintiff's allegations, which are largely contested by the
defendants, are set forth separately below.
Plaintiff Jewanta Desardouin
Plaintiff Jewanta Desardouin ("Ms. Desardouin") was hired by the City of Rochester as a security officer in February, 1988. At some point during her employment with the City, she was promoted to the position of Supervisor. As a Supervisor, Ms. Desardouin reported directly to the Security Superintendent for the City of Rochester. Both the Security Superintendent and Ms. Desardouin ultimately reported to Vincent McIntyre, ("McIntyre" or "Chief McIntyre") the Chief of Security, who was the highest-ranking official in the Security Department.
Ms. Desardouin claims that in May, 2007, Chief McIntyre began making sexual advances towards her and another plaintiff, Theresa Smith. Although Ms. Desardouin does not detail what sexual advances were made, she claims that McIntyre referred to her and Theresa Smith as "Thelma and Louise." She also claims that McIntyre, on at least a weekly basis, intimated that Ms. Desardouin's husband, plaintiff Jean Claude Desardouin, was not sexually satisfying her. Ms. Desardouin, who supervised plaintiffs Terra Ross-Caleb, Alfonda Crawford, and Theresa Smith, also claims that she observed McIntyre sexually harass these women, and alleges that these women complained of McIntyre's conduct towards them on a regular basis.
Ms. Desardouin alleges that she and the other female plaintiffs met with a representative of the City of Rochester's Office of Integrity to complain about McIntyre's conduct, but that the representative informed them that nothing could be done to change McIntyre's behavior. Thereafter, in January, 2008, Ms. Desardouin alleges that she formally complained to an officer in the Professional Standards Section of the Rochester City Police Department about McIntyre's conduct. Ms. Desardouin alleges that two officers from the police department conducted a "sham" investigation, and refused to listen to her allegations. She claims that the investigation was abandoned with no findings and no follow up actions.
On January 15, 2008, Ms. Desardouin filed a Complaint against McIntyre and the City of Rochester with the Equal Employment Opportunity Commission ("EEOC"). Ms. Desardouin alleges that after she filed the complaint, McIntyre retaliated against her by ordering her to discipline plaintiff Terra Ross-Caleb for violating the department's policy on uniforms, despite Ms. Desardouin's belief that Ross-Caleb was not in violation of the uniform policy.
Ms. Desardouin filed the instant federal Complaint in December, 2008, and she claims that McIntyre continued to retaliate against her, and create a hostile work environment. She claims that retaliatory conduct included being given an increased workload and being assigned administrative tasks that were not given to male supervisors. She further claims that her computer was tampered with in retaliation for filing the federal Complaint. Although plaintiff alleges that her computer was tampered with in retaliation for filing her federal Complaint in December, 2008, (See Affidavit of Jewanta Desardouin at ¶ 22 (alleging that her computer was tampered with after filing her Complaint in December)) she later states that her computer was tampered with in either October or November, 2008, one to two months prior to her filing her federal Complaint. See Affidavit of Jewanta Desardouin at ¶ 23 (alleging that the tampering occurred in either October or November 2008).
Ms. Desardouin alleges that in October or November 2008, she sent a secret audio recording (that she later admitted she made) of McIntyre and another Supervisor, Eric Cotton, allegedly discussing tampering with her computer. She claims that in February, 2009, four months after she submitted the audiotape, and three months after she filed her federal Complaint, she was fired for making the surreptitious recording.
Plaintiff Jean Claude Desardouin*fn2
Jean Claude Desardouin was hired as a Security Officer for the City of Rochester in 2004. Mr. Desardouin, who is married to plaintiff Jewanta Desardouin, is black and of Haitian descent. In March, 2007, Mr. Desardouin was accused of sexual harassment by maintenance employees of the City of Rochester. He claims that the City of Rochester failed to conduct a thorough investigation of the claims, and used the allegations as a pretext for firing him. Indeed, he claims that the sexual harassment allegations, which were made in March, 2007, were "fabricated" in retaliation for Ms. Desardouin's complaints of sexual harassment, which claims, according to Ms. Desardouin, were first made in January, 2008. See affidavit of Jean Claude Desardouin at ¶ 19 ("I believe that I was subject to retaliation when defendant terminated me [on December 2007] and fabricated the sexual harassment allegations for my spouse's engagement in protected activity . . . ."); affidavit of Jewanta Desardouin at ¶ 13 ("In or about January 2008, I complained to . . . the Rochester City Police Department about McIntyre's . . . sexual comments and innuendo). Although Mr. Desardouin does not explain how the retaliatory conduct against him could have taken place prior to the actions of Ms. Desardouin that allegedly prompted the retaliation, and does not allege any act by any defendant suggesting that he or black or Haitian employees were disparaged, or ridiculed, he nevertheless alleges that he was retaliated against, and treated differently than non-Haitian males who were accused of sexual harassment. Mr. Desardouin, whose employment was terminated in May of 2007, filed an administrative complaint of discrimination on September 2, 2008.
Theresa Smith, an African-American female, began working as a Security Officer with the City of Rochester in July, 2000. According to Smith, Chief McIntyre harassed her by referring to her and Ms. Desardouin as "Thelma and Louise" and by suggesting that Ms. Smith's husband*fn3 failed to have sex with her. Smith claims that McIntyre "stalked" her, and often commented, in a lascivious manner, on her physical appearance and attractiveness. Smith does not indicate the time frame in which this activity took place.
Smith contends that in June 2007, she was promised by an unidentified person that she would receive a promotion. She claims, however, that the promotion was given to a less qualified woman, whose ethnicity is not identified by Smith.
Plaintiff alleges that she witnessed McIntyre engage in acts of sexual harassment towards other women. Plaintiff alleges that she and Ms. Desardouin formally met with a City representative sometime in late 2007 to complain of McIntyre's behavior, but that nothing was done to stop his harassing behavior, and the women were told to "stay away" from McIntyre, their boss. Smith claims that in January 2008, she complained of McIntyre's behavior to a Diversity Coordinator, but that to her knowledge, no investigation or remedial action took place. Thereafter, she claims she was transferred to a different work location, was more intensely scrutinized by McIntyre, and was asked to perform twice as many inspections of a particular parking lot than were required under the City's policy. She also claims that she was investigated for working too much overtime, and was passed over for promotion.
Smith alleges that after she was transferred to another location, McIntyre personally intervened to change her schedule so that she would have to report tho his work location, and thus be subject to his continued harassment.
Alfonda Crawford, an African-American female, has worked as a security guard for the City of Rochester since October, 2004. Crawford contends that on one single occasion, she was subjected to unwelcome comments by McIntyre, based on her sex. Specifically, she claims that on April 14, 2007, just after she returned to work from maternity leave, as she walked into a meeting, Chief McIntyre stated "just because you just had a baby does not mean you can walk into my meeting late." According to McIntyre, this comment was made in light-hearted manner to celebrate the fact that Ms. Crawford was a new mother.
Crawford further contends that in August, 2007, she was denied a transfer to a day shift, though she does not allege that the denial was in any way related to her gender, race, or any other protected category. She claims that shortly after she was denied the transfer request, three employees who were transferred from the animal control department (the race and gender of whom is not identified) were given day shift assignments. Crawford alleges that in September, 2007, she was promised a transfer to day shift upon completion of the academic semester, as she was enrolled in college courses. She alleges that sometime in or after November, 2007, she was transferred to the day shift immediately, and as a result, could not complete her semester. Plaintiff does not allege that the decision to transfer her to the day shift was based on her gender, race, or other protected category.
In 2008, the Security Department allegedly implemented a policy of not allowing security officers of the same race to partner together on grounds that mixed-race teams of officers would appear more diverse to the community. Crawford contends that she was offended by the notion that assignments would be based on race.
Thereafter, plaintiff made several complaints, both internally and to the EEOC, about the partnering policy, and about McIntyre's alleged behavior. Crawford claims that she never saw the results or evidence of any investigation based on her complaints.
Crawford claims that since she began her employment in 2004, her supervisor Eric Cotton routinely made unwanted sexual advances towards her. She claims that in 2009, she received a letter of discipline from Cotton for taking vacation days, despite the fact that the vacation days had been previously approved. She claims that when she complained of this to McIntyre, McIntyre rescinded the letter of discipline. Plaintiff alleges that on two occasions in 2010, she requested and received permission to take time off, only to be told later that the ...