United States District Court, S.D. New York
OPINION & ORDER
ANDREW L. CARTER, Jr., District Judge.
In this action, Plaintiff Monica Bermudez ("Plaintiff" or "Bermudez") asserts claims of race, religious, and gender based employment discrimination under federal, state and local law against the City of New York and several of her fellow New York City Police Department ("NYPD") officers. Presently before the Court is a motion for summary judgment by the four remaining defendants in this action, the City of New York, Lieutenant Donald Stroman, and Officers Edward Sanabria and Serina Smith (collectively referred to herein as "Defendants"). For the reasons described herein, that motion is granted in part and denied in part.
A. Factual Background
The following facts are drawn from Plaintiff's "Response to Defendants' Local Rule 56.1 Statement of Undisputed Material Facts" (ECF No. 76), and Defendants' "Local Rule 56.1 Statement of Undisputed Material Facts" (ECF No. 59), as well the underlying evidence cited therein. Where the facts are subject to legitimate dispute, they are construed in favor of the Plaintiff as the non-moving party. Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993).
Plaintiff is a female of Puerto Rican descent and has been an NYPD police officer since July 1996. (August 14, 2014 Moshe C. Bobker Decl., Ex. A, Bermudez Dep. 11:13-16, 28:18-21, May, 18, 2010 (hereinafter "2010 Bermudez Dep.").) At all relevant times herein, Plaintiff was a practicing Catholic. (2010 Bermudez Dep. 38:9-24.) Plaintiff was transferred to the NYPD's Bronx Evidence Collection Team ("BECT") on or about January 12, 2004, at which time she alleges that Defendants began a course of discriminatory and abusive conduct towards her. (2010 Bermudez Dep. 10:24-11:1.) While Plaintiff's complaint asserts claims of such conduct against seven officers, the Court will primarily focus here on her allegations against the individual officers who remain as defendants, i.e., Lieutenant Stroman and Officers Sanabria and Smith.
1. Lieutenant Donald Stroman and Officer Serina Smith
a. Sexual Harassment
Plaintiff contends that, immediately upon her transfer to BECT in January 2004, Stroman began making "unwanted sexual advances" towards her. For example, Plaintiff testified that Stroman invited her to his house for drinks between five and ten times. (2010 Bermudez Dep. 55:6-14.) She testified that her response to the invitation was to indicate that she would accept his invitation if Stroman attended church with her, because she believed that he would not do so. (2010 Bermudez Dep. 55:3-5, 15-18.) Plaintiff testified that Stroman would also call her on her cellular phone to "express his romantic feelings" and say that she had "a beautiful body" and that he "loved" her and wanted to "make love" to her, (2010 Bermudez Dep. 55:23-25, 56:1-8), and would also make similar comments about her dress, looks and deportment to her in person. (2010 Bermudez Dep. 56:14-17.) Plaintiff testified that she initially misperceived these statements as benign and thanked him for them, until she realized that they were a "different kind of compliment." (2010 Bermudez Dep. 58:6-9.) She testified that she eventually told Stroman that she was not interested in him and that they only had a professional relationship. (2010 Bermudez Dep. 55:19-22, 58:1-13.) Plaintiff testified that she gave Stroman a flask as a gift for Christmas in December 2004. (2013 Bermudez Dep. 29:10-25.)
Plaintiff testified that on 10 to 20 occasions from May 2004 to some point in 2006, Stroman requested that Plaintiff remove her vest so that he could "hug" her. (2010 Bermudez Dep. 59:1-15.) Plaintiff also testified that, in December 2004, Stroman ordered her and Officer Sanabria - her partner at the time - downstairs to the garage of the evidence collections office, where he yelled at them that he "want[ed] to know what the fuck was going on." (Bobker Decl., Ex. B., Bermudez Dep. 26:23-28:6, Oct. 8, 2013 (hereinafter "2013 Bermudez Dep.").) At her May 18, 2010 deposition, Plaintiff testified that Stroman never tried to touch her in a sexually suggestive way, kiss or force himself on her, (2010 Bermudez Dep. 60:6-11), but testified at her October 8, 2013 deposition that, until October 2006, he would kiss her on the cheek "two or three times a week" and that "on several occasions" Stroman would "put his arms around" her and "press against" her. (2013 Bermudez Dep. 90:15-25.) She further testified that she did not tell Stroman to refrain from kissing her, but that he ceased doing so after she filed a complaint with the NYPD's Office of Equal Employment Opportunity ("OEEO") on October 2, 2006. (2013 Bermudez Dep. 90:20-25.) Nonetheless, Plaintiff testified that, at some point in 2007, after she filed her 2006 OEEO Complaint, Stroman and Sergeant Charles Neusch retaliated against her by excluding her from informal and impromptu meetings regarding changes in BECT protocol. (2013 Bermudez Dep. 56:17-59:19.)
In October 2007, Plaintiff testified that she was sitting at a table with Smith and Stroman when Stroman indicated that he was "very hungry." (2010 Bermudez Dep. 68:6-15.) Plaintiff testified that Smith then "pushed away the table, opened her legs and told Lieutenant Stroman come eat[, ] [and that Stroman] stuck out his mouth simulating oral sex." (2010 Bermudez 68:6-12.) Plaintiff testified that she was incredulous and got up and left. (2010 Bermudez Dep. 68:12-15.) This is Plaintiff's only allegation of discriminatory conduct by Smith.
b. Other Acts of Hostility
Plaintiff's 2006 OEEO complaint also charged Stroman with religious discrimination. As to this, Plaintiff testified that, approximately four to six months after her transfer to BECT, she requested Sundays and Mondays off from Stroman so that she could attend church services and confirmation classes, but the this request was only granted approximately 12 to 18 months afterwards. (2010 Bermudez Dep. 38:17-39:13.) She also testified that, beginning shortly after she was confirmed in January 2005 until October 2006 (when she filed her OEEO complaint), Stroman and Officer Denise Diaz would make comments like "praise the Lord" or "Halleluiah" whenever she walked into the room, and that Stroman in particular made such comments about six to eight times a week. ( See 2010 Bermudez Dep. 40:17-42:3, 47:3-48:8.) Additionally, Plaintiff testified that a few months after her confirmation ceremony, to which she had invited Stroman, he on one occasion repeatedly stated "[y]ou know these religious fanatics" while speaking to another officer but looking in her direction. (2010 Bermudez Dep. 40:20-24, 43:19-44:2.) Plaintiff also testified that when she extended Stroman invitations to attend church with her in response to his invitations to visit his home, Stroman would sometimes state that "he would burn in hell if he set foot in church, there was no way he would go to church that he loved the alcohol and women too much for him to attend church because he was going to burn in hell anyway." (2010 Bermudez Dep. 42:9-20.)
Plaintiff also testified that, on one day in 2007, after she had taken a couple of messages for Stroman, she went into his office to relay the messages, and he became "aggressive" and stated that she "should be concerned" and "worried about her position in the [BECT]." (2010 Bermudez Dep. 44:6-13.) Plaintiff responded that "there was only one person [she] would be worried and [sic] that would be [her chief]." (2010 Bermudez Dep. 44:15-16.) When Stroman asked "your chief?" Plaintiff stated, "Yes, God." (2010 Bermudez Dep. 44:16-17.) Plaintiff testified that Stroman told a Patrolmen's Benevolent Association delegate that she was an "emotionally disturbed person" because of her "chief" comment. (2010 Bermudez Dep. 44:17-45:11.)
Plaintiff testified that Stroman was similarly antagonistic towards her after she had back surgery on January 17, 2006, after which she was out of the office for the first two months for recovery, and then returned to work on limited duty status on March 14, 2006, was placed on restricted duty in April 2006, and then finally returned to full duty status February 2007. (2013 Bermudez Dep. 34:17-35:8.) Plaintiff testified that, during the first two months of recovery, Stroman and Neusch called her constantly to inquire about when she would return, the opinions of her doctor, and whether she was receiving disability. (2010 Bermudez Dep. 97:3-98:2.) Plaintiff also testified that she overheard comments between Stroman and Neusch where they stated that they believed she was feigning her injury, (2010 Bermudez Dep. 101:7-19), and that, at Stroman's direction and without any legitimate reason, Neusch instructed her that she could not read the patrol guide while she was on restricted duty. (2010 Bermudez Dep. 102:3-10). Plaintiff testified that, also at Stroman's behest, she was directed to work distributing vests to NYPD personnel in the "vest unit" for a two-week period during the end of October or beginning of November in 2006, despite the fact that the lifting it entailed was contrary to her restricted duty status. (2010 Bermudez Dep. 105:15-28, 107:8-25, 108:19-21.) Plaintiff also testified that at some point in 2006 while she was on restricted duty, Lieutenant Stroman changed her chart from patrol to administrative. (2013 Bermudez Dep. 35:15-22.) Plaintiff testified that while the NYPD Administrative Guide, did officially require the change, and her responsibilities remained the same, there were other officers in the unit who also satisfied the criteria for the administrative chart but were not so placed. (2013 Bermudez Dep. 36:6-37:23.)
Plaintiff requested a transfer to the Internal Affairs Bureau ("IAB") in mid-2007, and it was granted in November 2007. (2010 Bermudez Dep. 116:4-11.) She testified that she requested the transfer in interests of her mental state, safety and well-being, and that she requested IAB in particular because she felt it would insulate her from Stroman, Neusch and Inspector Wayne Bax. (2010 Bermudez Dep. 116:15-24.)
At some point after the transfer, however, Plaintiff testified that she had to return to BECT to retrieve paperwork for a case. (2013 Bermudez Dep. 17:14-20.) While waiting on the paperwork, Stroman entered the room and asked her if she had official business there, and she responded yes. (2013 Bermudez Dep. 17:21-18:1.) Stroman then ...