Beale v. Mount Vernon Police Dep't

• Decision Date: 28 September 2012
• Docket Number: Case No. 07–CV–7520 (KMK).
• Parties: Vivian BEALE, Plaintiff, v. MOUNT VERNON POLICE DEPARTMENT, Defendant.
• Court: U.S. District Court — Southern District of New York

895 F.Supp.2d 576

Vivian BEALE, Plaintiff,

v.MOUNT VERNON POLICE DEPARTMENT, Defendant.

Case No. 07–CV–7520 (KMK).

United States District Court,

S.D. New York.

Sept. 28, 2012.

Sanford A. Kutner, Esq., Metairie, LA, for Plaintiff.

Jessica C. Satriano, Esq., Howard M. Miller, Esq., Bond, Schoeneck & King, PLLC, Garden City, NY, for Defendant.

OPINION AND ORDER

KENNETH M. KARAS, District Judge.

Vivian Beale (“Plaintiff”) brings this action against the Mount Vernon Police Department alleging sexual harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983.¹ In addition, Plaintiff brings a state law claim for a hostile work environment under New York Executive Law § 296. Defendant moves for summary judgment, seeking to dismiss the complaint in its entirety. For the reasons stated herein, Defendant's motion is granted.

I. Background

A. Facts

The following facts are drawn from the Parties' Local Rule 56.1 statements, the depositions of Plaintiff and Police Officer Kenneth Rella, and exhibits and declarations submitted by the Parties. Plaintiff is a former Police Officer, who served for 38 years with the Mount Vernon Police Department (“Department”). (Pl.'s Mem. of Law in Opp. to Mot. for S.J. (“Pl.'s Mem.”) 3; Def.'s Statement of Material Facts Pursuant to Local Rule 56.1 (“Def.'s 56.1”) ¶ 1.)

In June 2002, Plaintiff took a leave of absence from the Department, while undergoing treatment for breast cancer. (Deposition of Vivian Joan Beale (“Beale Dep.”) 27:8–20.) Plaintiff understandably describes dealing with this “significant event” as a “stressful” period of her life. ( Id. 27:20–21, 24.) In May 2003, Plaintiff returned to full-time work in the support services division. ( Id. 33:14–19.) Plaintiff was assigned to a “light-duty” role, that was “not out on the street[, or] working the street.” ( Id. 35:11–12.) After working in the support services division for nearly two years, Plaintiff was transferred out to the patrol division in March 2005. ( Id. 41:21–23.) On April 5, 2006, Plaintiff submittedwritten notice of her intent to retire to the Department, with her last day at the office being July 4, 2006, extended to September 30, 2006 through accrued leave time. (Pl.'s Mem. 3; Def.'s 56.1 ¶¶ 2–4.)

The operative facts of the instant litigation occurred while Plaintiff was a member of the patrol division, during the last sixteen months of her career with the Department. Upon joining the patrol division, Plaintiff was given a special schedule which allowed her to avoid the midnight shift, while dealing with the effects of the medication that she was then taking. (Beale Dep. 85:19–20, 86:22–25, 87:2–4.) Plaintiff also was assigned to the same squad as, and was placed under the intermittent supervision of, Sergeant William Podszus (“Podszus”). ( Id. 84:20–23, 95:8–9, 97:2–3.) Plaintiff “never had a working relationship with” Podszus prior to this transfer. ( Id. 95:6–7.) Plaintiff also worked for the first time with Officer Kenneth Rella (“Rella”) during this period. ( Id. 101:8–102:5.)

During the relevant sixteen-month period, Plaintiff claims that she experienced multiple instances of harassment involving Rella and/or Podszus. “[A]round March 2005,” the first day she came into the new squad, Podszus asked Plaintiff: “What do I have to do to get hours like you?” ( Id. 87:15–16, 90:20–21.) Plaintiff took this comment to be of “a sexual nature,” implying that she “did a favor for someone ... so [she] didn't have to work the midnight shift[.]” ( Id. 88:3–7.) Plaintiff was “stunned,” and “didn't even answer him,” whereupon Podszus remarked “[o]h, I forgot.” ( Id. 89:17–90:4.)

At some point within the first four months of joining the patrol division, while Plaintiff was working phones in the squad, Podszus allegedly commented that “[w]omen are useless.” ( Id. 130:6.) Plaintiff recalls that there “was no conversation ... he just said that comment.” ( Id. 131:21–23.) Upon hearing the comment, Plaintiff asked Podszus not to make those kind of comments in front of her, to which he replied “or else?,” a remark that Plaintiff perceived as intimidating. ( Id. 132:22–133:7.)

In May 2006, while Plaintiff was either answering the phone or attending to a civilian at a service window, Rella crumpled up a piece of paper and placed it under the shoulder epaulet on Plaintiff's uniform. ( Id. 180:8–11, 181:8–9.) Rella did not touch Plaintiff anywhere aside from her shoulder. ( Id. 180:22–25.) Plaintiff responded by telling Rella to “go in the street and do your fucking job,” and “get your fucking hands off me.” ( Id. 178:13–14, 184:6–10.) The incident apparently ended at this point, with no further reaction from Rella or Podszus, the latter of whom was a few feet away, although a civilian said “[o]h, nice language” to Plaintiff. ( Id. 184:9–24.) ²

In July 2006, Podszus also asked Plaintiff to “do some light housekeeping,” ( Id. 137:23–24, 139:12–14) and clean up the roll call room. Plaintiff felt that Podszus “made the statement because she is a female and he was trying to humiliate her.” (Affidavit of Barbara Duncan (“Duncan Aff.”) Ex. E, at 7 ¶ 9.) On July 7, 2006, or the week before, while Plaintiff was retrieving a prisoner's property out of Podszus's drawer, Podszus asked her “[d]o I ask to go into your drawers?” stating afterwards, “[l]et me rephrase that.” (Beale Dep. 125:9–10, 24, 129:9–13.) Plaintiff proffers that she “kn [e]w what the rules and regulations are” regarding the retrieval of prisoner property and that Podszus was attempting to “institute a rule” that he made “all of a sudden.” ( Id. 127:12–20, 128:4–5.)

Plaintiff also alleges a number of incidents, the chronology of which she does not specify. For instance, Plaintiff recalls taking a personal call at work, concerning her son, during which Podszus “started yelling and screaming and carrying on” ( id. 96:18–19), eventually telling her “[d]on't ever pick up your phone again in front of me ... I'm the commander,” ( id. 97:8–10). Plaintiff says that another female officer, Kathleen Mitchell (“Mitchell”), told her that sometime around 2005 or 2006, Podszus asked if Mitchell was a “fucking bobblehead,” after she had nodded in response to a comment. ( Id. 114:22–24, 115:8–116:2.) Plaintiff also states that Podszus has remarked that “[w]omen should not be on this job,” in the past. (Duncan Aff., Ex. E, at 7 ¶ 11.) Plaintiff, at some point, also overheard Podszus refer to a female attorney as a “bitch.” (Third Amended Complaint (“Am. Compl.”) ¶ 24(a).)

During her time in the squad, Plaintiff thought Podszus harassed both male and female employees. (Beale Dep. 202:21–23.) On one occasion, Plaintiff heard Podszus yelling at three male dispatchers. ( Id. 108:13–15.) On other occasions, Plaintiff also saw Podszus tell other male employees that he was “the commander,” ( id. 100:5–8), and “screamed” or “yell[ed]” at three male officers, ( id. 110:18–20, 111:20–23, 112:12–16 (describing three different incidents between Podszus and Officers Robert Delitta, Clifford Morrison, and Phillip Kratzer)). Generally, Plaintiff believed that both male and female members within the Department had lodged numerous complaints against Podszus. ( Id. 194:4–14.)

In early July 2006, Plaintiff went to one of Podszus's superior officers, Lieutenant Manzione (“Manzione”), about “basically all” of her complaints against him, including the comments on hours, light housekeeping, and women being useless, as well as being yelled at by Podszus for leaving her desk for a few minutes to sanitize her hands after handling prisoner property that had been urinated upon. (Beale Dep. 139:1–3, 143:1–25.) Plaintiff was “sure” that Manzione thereafter spoke with Podszus “several times.” ( Id. 140:2–8.)

On July 3, 2006, “a couple of days before [Plaintiff] left” her job, Officer Rella asked her “[w]hat are you going to do when you retire? Go work on First Street?” ( Id. 155:25–156:2.) According to Plaintiff, it was “common knowledge throughout the police department” that the First Street corridor was an area “where they arrest prostitutes” and is frequented by “men [ ] soliciting prostitutes.” ( Id. 154:9–16.) Plaintiff, taking the comment to imply that she would “work on the street as a prostitute” replied “I [don't] think that my boyfriend would like that.” ( Id. 154:5–6, 156:5–6.) ³ Rella then retorted “[y]ou can give your boyfriend half the money you make,” and told Podszus, in the same conversation, “[w]ho are we going to pick on when she leaves?” ( Id. 160:9–10, 22–23.) ⁴Podszus “just sat there” and “didn't say anything.” ( Id. 160:24–25.)

The next day, on July 4, 2006, Sergeant Marren asked Beale which “spare vehicles were good,” and Podszus said “[w]hy are you asking her[,] she hasn't worked the street in ten years.” (Duncan Aff. Ex. E, at 7 ¶ 8.) That same day, at roll call, Rella “said something” to Plaintiff which prompted her to respond “fuck you.” (Beale Dep. 169:7–9.) After Rella then said “I have 15 witnesses,” Plaintiff “told him to go fuck himself again.” ( Id. 170:14, 20–21.) At that point, after roll call, Plaintiff complained to Lieutenant Manzione for a second time. ( Id. 168:11–12, 21–22.) Plaintiff also made a verbal complaint of harassment to Captain Barbara Duncan (“Duncan”) on the same day. (Def.'s 56.1 ¶ 10; Duncan Aff. ¶ 3; Pl.'s Mem. 4.) On July 7, 2006, Beale submitted a written “MV–5” report outlining her allegations of harassment against both Podszus and Rella, and supplemented it later that month. (Duncan Aff. ¶ 4, Ex. B, C, D.)

The Department commenced an investigation into Beale's allegations, conducted by Duncan and Lieutenant Dante Barrera (“Barrera”), obtaining written information from twelve members of the department, and interviewing Beale, Rella, and Podszus. ( Id., ¶¶ 7–9, Ex. E.) Plaintiff also was asked if she would be willing to wear a wire as part of this investigation, to record harassing...