Raspardo v. Carlone

• Decision Date: 06 October 2014
• Docket Number: 12–1870–CV.,Nos. 12–1686–CV,s. 12–1686–CV
• Citation: 770 F.3d 97
• Parties: Jennifer RASPARDO, Needasabrina Russell, Gina Spring, Plaintiffs–Appellees, v. John CARLONE, William Gagliardi, Thomas Steck, Kenneth Panetta, Anthony Paventi, Defendants–Appellants, City Of New Britain, New Britain Police Department, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

770 F.3d 97

Jennifer RASPARDO, Needasabrina Russell, Gina Spring, Plaintiffs–Appellees

v. John CARLONE, William Gagliardi, Thomas Steck, Kenneth Panetta, Anthony Paventi, Defendants–AppellantsCity Of New Britain, New Britain Police Department, Defendants.^*

Nos. 12–1686–CV

12–1870–CV.

United States Court of Appeals, Second Circuit.

Argued June 28, 2013.

Decided Oct. 6, 2014.

Alexandria L. Voccio, Howd & Ludorf, LLC, Hartford, CT, for Defendant–Appellant John Carlone.

Joseph W. McQuade, Kainen, Escalera & McHale, P.C., Hartford, CT, for Defendant–Appellant Anthony Paventi.

Irena J. Urbaniak (Joseph E. Skelly, Jr., on the brief), Office of the Corporation Counsel, City of New Britain, New Britain, CT, for Defendants–Appellants.

Norman A. Pattis, The Pattis Law Firm, LLC, Bethany, CT, for Plaintiffs–Appellees.

Before: WINTER, LYNCH, and DRONEY, Circuit Judges.

Opinion

DRONEY, Circuit Judge:

Plaintiffs–Appellees (the “plaintiffs”), two former and one current female New Britain police officers, brought suit in the United States District Court for the District of Connecticut against the City of New Britain, its police department, the police union, and five individual police supervisors under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2, 42 U.S.C. § 1983, and other federal and state laws. The plaintiffs alleged that the five supervisors discriminated against them on the basis of sex by creating a hostile work environment and disparate treatment. Those individual defendants moved for summary judgment on the basis of qualified immunity, but the district court (Alvin W. Thompson, J. ), denied their motions.¹ The five individual defendants contend here, as they did before the district court, that they are entitled to qualified immunity. For the reasons that follow, we AFFIRM in part and REVERSE in part the district court's denial of the individual defendants' motions for summary judgment and REMAND for proceedings consistent with this opinion.

BACKGROUND

I. The Plaintiffs' Claims of Sexual Harassment and Disparate Treatment

The New Britain Police Department (“NBPD” or the “department”) hired Plaintiff Gina Spring on January 28, 2005, and Plaintiffs Jennifer Raspardo and Needasabrina Russell in August of 2006. Spring resigned from the NBPD on August 21, 2008, when she accepted a position with the City of Torrington Police Department. Russell went on Family and Medical Leave Act (“FMLA”) leave in 2008 and never returned to active duty, ultimately leaving the NBPD permanently in 2010. Raspardo remained an NBPD officer at the time of the filing of this suit. The five defendants in this appeal were at all times supervisory police officers in the NBPD.

The plaintiffs' claims against these defendants are best understood by dividing them into two categories. First, each of the plaintiffs alleges that John Carlone, a sergeant in the NBPD and their direct supervisor, sexually harassed them through inappropriate jokes, comments, and other behavior, including unwanted physical contact with Raspardo and Russell, which created a hostile work environment. Second, the plaintiffs allege that the four other individual defendants created a hostile work environment and subjected them to disparate treatment by making inappropriate comments, failing to adequately report or investigate Carlone's harassing behavior, and disciplining the plaintiffs more harshly for violations of NBPD policies than male officers. Most of the events occurred between early 2007 and early 2008.

We first address the claims against Carlone before turning to the claims against the four other defendants.

A. The Plaintiffs' Claims Regarding Carlone

1. Spring's Claims

Spring complains principally of two incidents involving Carlone. First, in 2007, Carlone and Spring responded separately to a police call concerning a report of a naked woman. En route to the scene, Carlone sent Spring a message via his mobile data terminal (“MDT”)² that she “would be perfect” for responding to the call. Carlone then sent Spring additional messages, the substance of which she could not recall at the time of discovery in this action, but that she also thought were inappropriate. Spring did not respond to the messages and had no issues with Carlone at the scene. Second, throughout her time under Carlone's supervision, Carlone gave Spring rides in his police cruiser while she was walking a beat. During these occasions, Carlone asked questions about Spring's dating history, which she found uncomfortable, but she did not otherwise perceive Carlone's actions to be inappropriate.

While she was under Carlone's supervision, Carlone would also call Spring “Brown Eyes” and sing the song “Brown Eyed Girl”³ around her, but Spring did not interpret this as harassment at the time. Spring now asserts that this nickname refers to “a female who participates in anal sex.”⁴ Defs.' App. 116.

Spring never observed Carlone act inappropriately with other female officers and does not allege that he had any physical contact with her. Spring never made a formal administrative complaint with the department. She filed a complaint with the Connecticut Commission on Human Rights and Opportunities (“CHRO”) in September of 2008, while Carlone was under investigation by the NBPD for his misconduct.

2. Raspardo's Claims

Raspardo details four principal incidents. First, in the summer of 2007, after responding to a call, Carlone asked Raspardo if she had plans for the night. She told him that she did not, and Carlone asked her if she was “planning to go out drinking or have sex with [her] boyfriend,” who was also an officer in the department. Raspardo asked if she was free to go and left immediately. Second, during that same summer, Carlone told Raspardo that her uniform was too big and should be more form-fitting. Third, at some point in 2007, Carlone approached Raspardo in the roll call room where she was writing a report and attempted to massage her shoulders. When Raspardo shrugged her shoulders, indicating that she was uncomfortable, Carlone stopped. Fourth, in April of 2008, Raspardo approached the main police desk (where Carlone was sitting) to sign a report. Carlone removed a magazine from a drawer and showed Raspardo a picture of a woman wearing law enforcement tactical gear; the woman's clothing was tight, and the photograph was focused on her buttocks. Carlone then passed the photo around to other male officers and said that the woman's buttocks looked like Raspardo's buttocks. Raspardo told Carlone that his comment was not funny and left immediately.

Raspardo also represents that Carlone made inappropriate comments to her while she was on field training from January to April of 2007, but she fails to provide any specific details about these comments. Finally, Raspardo also claims that Carlone “said things [of a sexual nature] that made [Raspardo] uncomfortable and angry.” Pl. Carlone's App. 4. Specifically, Raspardo asserts that Carlone “made references to [her] body parts on at least over ten occasions.” Id. at 5. In a statement provided during the NBPD investigation of Carlone in May 2008, Raspardo explained:

Mainly Sergeant Carlone would make comments about my butt. These comments were random. Sometimes it was when we were one on one and sometimes it was when people were passing by. These comments made me feel disrespected, angry, and embarrassed. The comments were inappropriate. I took these comments as sexual in nature and not related to work in any way. I would say things like “that isn't funny” or just walk away.

Id. When questioned about Carlone's comments at her deposition and in interrogatories, Raspardo confirmed that Carlone made them while he was her supervisor between 2007 and 2008, but she could provide few additional details.

Raspardo does not allege that Carlone sexually propositioned her, and she never observed Carlone sexually harass other female officers. Although Russell stated that she heard Carlone make other offensive comments about Raspardo's body and her dating history, Raspardo concedes that she learned of these additional comments only after Chief William Gagliardi (“Gagliardi”) placed Carlone on administrative leave in May 2008 while the NBPD was investigating him. Raspardo did not report Carlone's conduct to the NBPD until after he had been placed on leave. She did not lodge an internal complaint with the NBPD concerning the alleged sexual harassment, but she did complete a sworn statement during the department's investigation of Carlone in May of 2008, which included his inappropriate conduct toward her. Raspardo ultimately filed a complaint with the CHRO in September of 2008.

3. Russell's Claims

Carlone did not move for summary judgment as to Russell's sexual harassment claim in the district court. Thus, Russell's claim against Carlone is not before us. Russell's complaints regarding his behavior have some relevance, however, with relation to her claims against the other defendants, and are considered in that context.

Prior to joining the NBPD, Russell had a consensual sexual relationship with Carlone, which ended when she learned that he was married. When Carlone learned that Russell had been hired by the NBPD, he congratulated her and told her that she could now “drive him around and he [could] do sexual things to [her].” Pl. Carlone's App. 31. Russell told Carlone that this would not happen. Once Russell became an officer under Carlone's supervision, Carlone began making inappropriate and lewd comments regarding her body and appearance. Carlone's comments about Russell's body soon became much more frequent and sexually explicit. Carlone then began reprimanding and disciplining Russell harshly for alleged work performance issues. Carlone also started a rumor that Russell was having a sexual relationship with another officer and embarrassed her in front of other officers several times. In July of 2007, Carlone forced Russell to perform a sexual act. Carlone's sexual harassment of Russell and...