Gonzalez v. Bratton

Full title: GLORIA E. GONZALEZ, Plaintiff, v. POLICE COMMISSIONER WILLIAM BRATTON…

Court: United States District Court, S.D. New York

Date published: Aug 21, 2000

96 Civ. 6330 (VM), 97 Civ. 2264 (VM) (S.D.N.Y. Aug. 21, 2000)

Opinion

96 Civ. 6330 (VM), 97 Civ. 2264 (VM)

August 21, 2000

Paul T. Shoemaker and Jeffery H. Sheets, New York, N.Y., for Plaintiff.

Andrea Moss and Lisa Brauner, New York, N.Y., and Laura A. Breveth, Esq., Frederick J. Anton, Law Offices Laura A. Breveth, New York, N.Y., for Defendants.

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Plaintiff Gloria Gonzalez ("Gonzalez"), a former police officer with the New York City Police Department (the "Police Department"), brought this action against a number of New York City police officers, the Police Department itself, the City of New York, and former Commissioners of the Police Department (collectively, the "City Defendants"). Gonzalez alleges sexual harassment, gender discrimination, and retaliation for having complained about City Defendants' conduct, as well as other deprivations of her civil rights. Gonzalez also brings retaliation charges against the Patrolmen's Benevolent Association of the City of New York (the "PBA") for its alleged participation in the adverse employment actions on which she bases her claims against the City Defendants. Gonzalez asserts claims pursuant to Title VII of the Civil Rights Act ( 42 U.S.C. § 2000e et seq.), 42 U.S.C. § 1983, and New York State and City human rights laws and New York common law. Currently before this Court are the City Defendants' motion for partial summary judgment on claims based on gender discrimination, sexual harassment, and retaliation brought under Title VII and City and State human rights laws, as well as a motion by the PBA for summary judgment on all claims against it.¹

1 Gonzalez withdrew additional claims she had asserted against all defendants under the Americans with Disabilities Act.

INTRODUCTION

The law by its very nature records many matters that embody the perception, progression and maturation of external events. Legal disputes, requiring the analysis and cataloguing of what has occurred, then often demand an exercise of retrospection and reconstruction that brings to mind an image of a time-motion study. Its object is to focus by close-up on the precise moment that gives rise to rights and engenders corresponding duties to invoke them. This case calls for such a task. The various issues in contention here demand calibrated judgments about the interrelation of time and events: the moment in a continuum when fine lines of conduct fade from one form of action and ripen into another; when conduct of one person becomes sufficiently manifest and identifiable for what it is so as to give it a name, load it with legal meaning, and charge another person both with recognition of the act and a duty to respond formally to it; when, to the contrary, the realm of perception of things seen and felt may be misleading, by presenting, like the proverbial tip of the iceberg, an incomplete picture of a reality unknown to the beholder but possessing much larger mass and essence than the fragment of it that peers into view; and when the point arrives at which an act or omission by one person or group may by association and through imputation ripen into responsibility for actions in fact taken by another.

Specifically, in question here are differences over whether the sexual element of discrimination Gonzalez charges lies sufficiently at the heart of defendants' behavior to render the proper branding of their acts and related consequences as one legal action but not another, as sexual harassment discrimination but not gender discrimination; whether certain of Gonzalez's accusations are barred by the passage of time; whether, on the other hand, the violations she claims were patterned and sustained long enough to qualify for exception from legal time limitations; whether, in particular, the police misconduct consisted only of some isolated visible incidents involving unrelated actions of separate officers, or, as Gonzalez charges, a hidden concerted campaign of harassment and reprisals conspiratorially directed and coordinated by the highest levels of the Police Department; and whether the alleged wrongful conduct by individual agents of Gonzalez's employer may be imputed to the union she turned to for legal aid, thereby placing liability for retaliation on the PBA on account of its alleged failure to protect Gonzalez's interests adequately from the adverse actions of her employer.

What the replay of events in this action as recalled years later will reveal, only time and a jury may tell. But, contextually viewed, Gonzalez's accusations, if sustained by a jury, may be read to convey this much: when the history of the New York City Police Department's treatment of its women officers is told, the chapter this case records may not recount one of its finest moments.

FACTS

Gloria Gonzalez began her career of approximately 12 years with the Police Department in 1984. She alleges having experienced some level of sexual harassment during the course of her employment, but says that she made no official complaints and, in spite of it performed well, receiving positive evaluations for a number of years. In 1990, Gonzalez was assigned to the 45th Precinct in the Bronx, where she continued, at first, to receive positive reviews from her superior officers, including defendant Lieutenant Lawrence Powell ("Powell"), an immediate supervisor with whom she worked.

In approximately 1992, however, Powell allegedly began the sexual harassment that ultimately gave rise to this action. Gonzalez claims that, to her growing discomfort, Powell asked her out on dates, changed her work assignments in order to cause her to be with him outside the precinct, and touched and spoke to her in an inappropriate and suggestive manner. Transcript from Deposition of Gonzalez ("Gonz. Tr."), at 39, 41-49, 64, 68, attached as exhibit 6 to Affidavit of Paul Shoemaker, sworn to on Jan. 24, 2000 ("Shoemaker Aff."). She also asserts that Powell, in order to gauge her reactions to his advances, would often point out Gonzalez's strong resemblance to his former girlfriend. Affidavit of Gloria Gonzalez, sworn to Jan. 24, 2000 ("Gonz. Aff.") ¶ 40; Gonz. Tr. at 72-73. Finally, Gonzalez states that Powell, chastising her for "not playing the game," harassed her for not responding to his advances by using his authority over her work to control her schedule generally, by rearranging her assignments and by denying her leave requests and the vacation days she had selected. Affidavit of Gloria Gonzalez, sworn to September 20, 1995, annexed to Gonzalez's Amended EEOC Charge dated September 20, 1995 ("Gonz. EEOC Aff."), ¶¶ (dated) 1/1/93, 9/1/93.

In the spring of 1994, Gonzalez brought her concerns to the attention of the Police Department's Office of Equal Employment Opportunity (the "OEEO"). In late April, she telephoned her first complaint about Powell to the OEEO, alleging that he was sexually harassing her and that he was retaliating against her on account of an earlier complaint against him by another female officer. On May 5, 1994, Gonzalez followed her telephone call with a written OEEO complaint that charged sexual harassment against Powell but it did not refer to the alleged retaliation. Gonz. Aff. ¶ 35.

Gonzalez claims that immediately after she filed her internal OEEO complaint, Powell's behavior toward her changed, in that he became abusive, finding fault with her work, berating her, and reassigning her to positions away from him and outside the station house. Gonz. Tr. at 59-61. Powell also allegedly told Gonzalez that she would regret it if she did not rescind her complaint. Gonz. Aff. ¶ 36.² Gonzalez says she reported her complaints against Powell to her PBA delegate at the 45th Precinct, Richard Ragogna ("Ragogna"), who advised her to "watch [her] back" with respect to making such complaints against superior officers, and warned her about the possibility of retaliation. According to Gonzalez, Ragogna took no further action. Gonzalez claims that her supervisors' response to her sexual harassment complaints were suggestions that she transfer from the 45th Precinct. Gonz. Aff. ¶ 37; Gonz. Tr. at 33-34.

2 Gonzalez also alleges that Powell continued to retaliate against her after she left the 45th Precinct by ensuring that her subsequent supervisors were informed that she had filed OEEO complaints and later by charging her with removing from his office a photograph of the girlfriend he said she resembled.

In June 1994, Gonzalez agreed to be transferred to the 50th Precinct in the Bronx, which was under the command of defendant Captain Anthony Kissik ("Kissik"). There, Gonzalez asserts, both the harassment and the retaliation related to her earlier complaints continued and intensified. She claims that on the day of her arrival her previous complaints were already well-known to the officers of the 50th Precinct. From the beginning, she says, Kissik and other male officers working with him harassed her and treated her differently from male officers, using vulgar and demeaning language both as harassment and as retaliation for her earlier complaints. Gonz. Tr. at 26, 77-78. Specifically, Gonzalez recounts one occasion in which in her presence Kissik referred to women as "bitches". Id. She claims Kissik would not allow her to wear shorts during a heat wave while she was on restricted duty assignment at the precinct switchboard although male officers were allowed to wear shorts. Gonz. EEOC Aff. ¶ 6/25/94. She also declares that, unlike male officers on restricted duty, her tours were regularly changed to night shifts and weekends. Id. ¶¶ 6/20/94, 7/13/94, 7/15/94; Gonz. Tr. at 319.

Also in June 1994, Gonzalez was summoned to the Police Department's headquarters for an interrogation by the Internal Affairs Bureau (the "IA"). The purported subject of the inquiry was Gonzalez's having worn her uniform during an appearance as a character witness at a hearing about her brother at the Manhattan Psychiatric Center, although she reports that she actually did not testify. Gonzalez asserts that the involvement of IA, which normally handles internal investigations of serious police misconduct, was unusual, and that PBA attorneys Kevin Campbell ("Campbell") and Robert Browne ("Browne") both expressed surprise that she was being interrogated for that offense by the IA. Gonz. Aff. ¶¶ 4, 18-20. According to Gonzalez, the unusual circumstances prompted Campbell to ask what else she might have done to cause such a disproportionate reaction to having appeared at a hearing in uniform. She claims she told both PBA attorneys at that time that she believed this incident reflected harassment and retaliation for her having filed a sexual harassment complaint. Id. ¶ 4.

At the interrogation, Gonzalez was represented by Browne. She asserts that Browne failed to provide effective assistance while she was asked about a wide variety of subjects that seemed far afield from the uniform incident under investigation, including inquiries about places of residence, drug use and other questions pertaining to her friends and family. She also inferred that the officers interrogating her had heard about her previous complaints, as evidenced when one of them asked her, when she requested a break, whether she was going to file a sexual harassment complaint against them. Gonz. Tr. at 84.³

3 The court notes that, while the discussion described by Gonzalez in her deposition is not reflected in the transcript of the IA interrogation, the transcript includes an exchange that appears to support Gonzalez's contention that the IA was aware of her harassment allegations. One of the interrogators, Lieutenant James J. O'Brien, asked Gonzalez whether she felt she was being sexually harassed by the interrogators and indicated that he understood that she had addressed her harassment complaints to another agency within the department concerning a particular lieutenant talking and acting inappropriately towards Gonzalez.See Transcript of Internal Affairs Division GO-15 Hearing, dated June 13, 1994, attached as exhibit 10 to Shoemaker Aff., at 35-36.

Gonzalez argues that this entire proceeding, as manifest by the scope of unrelated personal inquiries and the references to sexual harassment, was part of the Police Department's continuing campaign of retaliation against her. While Gonzalez acknowledges that Browne did, in fact, object to the questioning as it strayed farther afield from either the underlying incident or anything she had discussed at the hearing itself, she states that his representation was perfunctory at best, and that Browne ultimately harmed her by recommending that she submit to a psychological evaluation. Gonz. Aff. ¶¶ 22-23, 25. The proceeding concluded on June 13, 1994 with Gonzalez being ordered to surrender her guns and to undergo evaluation by the Police Department's Psychiatric Services unit. Gonz. Tr. at 84-85, 88-89.

Gonzalez states that she consented to the psychiatric evaluation on the basis of Browne's representation that she might otherwise be fired or suspended. Further, she argues that because Browne would not advance her defense that the IA interrogation was motivated by retaliation for her having complained of sexual harassment, she was then subjected to a psychiatric evaluation intended by the Police Department all along to create evidence in support of charges that she was mentally disturbed rather than genuinely aggrieved by sexual harassment. Gonz. Aff. ¶¶ 25, 26.

In August 1994, Kissik requested that Gonzalez be transferred from the 50th Precinct to the Bronx Court Section, an assignment which Gonzalez characterizes as a dumping ground which carries a stigma as reserved for officers who have demonstrated difficulties and limitations in their ability to perform regular police functions. She claims that her relegation to this work station, and the fact that she was placed on "restricted duty," represented retaliation for her having filed an OEEO complaint against Powell. Gonz. Tr. at 91; Gonz. Aff. ¶ 38.

While at the Bronx Court Section, Gonzalez's supervisor was defendant Captain Jeffrey Mishula ("Mishula"), who she claims admitted to having learned of her previous OEEO complaint through an officer working under Powell. Gonz. Tr. at 146-47. She says Mishula continued Kissik's discriminatory treatment of her by causing a number of his supervisors to "attack [her] on a daily basis for a few months" by "[v]erbally, yelling, screaming", by assigning her particularly undesirable tasks, giving her command disciplines for minor infractions, and by disregarding her concerns about prior physical injuries she had suffered that would, and allegedly did, make certain work more dangerous for her. Gonz. Tr. at 149-51. Although injured during one such assignment, Gonzalez continued to work at the Bronx Court Section until June 1995, when her guns were restored and she was returned to the 50th Precinct, where Kissik was still the commanding officer. Gonz. Tr. at 192-93.

At this point, Gonzalez alleges, the harassment escalated. She says that when he first saw her in the precinct upon her return, Kissik said to her: "What the fuck are you doing here? I thought you were fired." Gonz. Tr. at 292. She also declares that on the date she reported back, "Lt. Santiago stated, We thought you were getting Fired. Sgt. Gandt harassed me; Sgt. Dunphy threw a bag in my face — my locker was clipped open without any notifications" Gonz. EEOC Aff. ¶ 6/14/95. When she reported property stolen from her locker, Gonzalez attests, Kissik "called me a liar and screamed at the Sgt's, I don't want her in this fuckin Pct., get her out of here." Id. ¶¶ 6/14/95, 6/19/95; Gonz. Tr. at 108.

Gonzalez claims that during subsequent months, Kissik continued to use derogatory and disrespectful language toward her and constantly punished her for minor infractions of the sort routinely ignored when committed by other officers. Gonzalez further alleges that Kissik specifically ordered other officers, in particular his assistant, defendant Sergeant Thomas Praskash ("Praskash") to "ride" her, telling them, "I want anything on her, keep her out of the Pct", and that Kissik's instructions were carried out by means of frequent inspections, written reports for any form of infraction, denials of requests for days off and daily changes in postings, during as much as 90 percent of her tour, intended to keep her out of the Precinct. Gonz. Tr. at 106, 296-97, 313-319; Gonz. EEOC Aff. ¶¶ 6/20/95, 6/21/95. On one occasion, Gonzalez declares, she was "[t]hrown out on Patrol without proper gear, putting my life and civilians in danger." Id. ¶ 6/19/95.

Gonzalez's allegations concerning her treatment by Kissik and other officers at the 50th Precinct are substantiated by the deposition testimony of Adam Alvarez ("Alvarez"), an officer in the Police Department Advocate's Office assigned to investigate allegations of official misconduct brought against Gonzalez. Alvarez testified that he concluded during his inquiry that many actions taken against Gonzalez were baseless and that high-level personnel in the Police Department were trying to force her out. Transcript from Deposition of Alvarez ("Alvarez Tr."), attached as exhibit 2 to Shoemaker Aff. Alvarez's testimony indicates that these actions were largely grounded on Gonzalez's complaints against other police officers and on the resulting personal malice of Kissik. Alvarez Tr. at 225, 250, 253, 256-57.

Specifically, Alvarez states that, in the course of these investigations, he spoke with Kissik and Praskash and learned from them that Kissik had ordered Praskash and others to give Gonzalez a particularly hard time (to "ride her") "to keep her under, deny her days off, write her up every opportunity, inspect her frequently" in order to force her out because she was a "troublemaker" and because it was Kissik's bias that "no women belong on [the] job" of police officer. Id. at 250, 251, 253. Alvarez's testimony and accompanying notes relate that Michael Markman, the Police Department's Chief of Personnel, told Alvarez and others that he wanted Gonzalez out of the force and had promised "his good friend" Kissik that he would "take care" of her in this regard. Id. at 103, 222. Alvarez further attests that Markman maintained a "hit list" of officers he wanted to pressure out of the Police Department. Id. at 127-29, 224-25. The officers on the list, according to Alvarez, were nearly half female and disproportionately those, including Gonzalez, who had filed complaints against their superior officers. Id. at 225.

Gonzalez was again forced to surrender her guns in August 1995 after an incident in which she did not sign a notification of an assignment from Praskash because she had a conflicting grand jury appearance obligation on that day. Gonz. Tr. at 116-17. Gonzalez's resistance to the assignment prompted not only the order to surrender her guns and shield but also a suspension from duty. Gonzalez says she sought help from the PBA delegate at the station, Sergeant Paul Crowley, and that he did not advance any argument on her behalf but instead told her to do as her supervisors ordered, just as she asserts he did each time she attempted to defend herself against charges and accusations by her supervisors. Gonz Aff. ¶ 34; Gonz Tr. at 121-23.

Following that suspension, in the fall of 1995, Gonzalez was again reassigned to what she characterizes as undesirable, stigmatizing duties, this time at the Manhattan Court Section. She complains of experiencing there constant reprimands and suspensions for various minor infractions. Many of these charges involved the Health Services Division and her contentious relationship with her assigned physician, defendant Dr. Stanley Edelman ("Dr. Edelman"). Gonzalez claims Dr. Edelman repeatedly denied her requests for health leave and ignored requests she made relating to his medical treatment of her. Gonz. Tr. at 54-57, 172-175. She was, for example, charged with refusing to allow Dr. Edelman to examine her, when in fact she alleges she merely had asked that he wear surgical gloves and mask and have a female nurse present while examining her.

Gonzalez' frequent encounters with Dr. Edelman resulted in her experiencing numerous suspensions without pay. Gonz. Tr. at 161-62, 173, 177, 187. According to Alvarez's testimony, Dr. Edelman told him that he had denied Gonzalez's requests to refer her to other health care professionals because he had been ordered not to on instructions from Markman's office. Alvarez Tr. at 230-35. Specifically, Alvarez testifies, Dr. Edelman indicated that he was directed not to give Gonzalez anything she wanted, "not to issue [her] a pass to leave her residence when she is out sick and to put her back to work as soon as possible." Id. at 234.

At a hearing on December 12, 1995 regarding a charge of having refused to submit to a medical exam, Gonzalez contends, her assigned PBA attorney, Robert Browne, refused to represent her and advised her to retain private counsel before finally agreeing to attend the hearing as attorney "for the PBA" rather than on her behalf. Gonz. Aff. ¶¶ 28-30. She alleges that while he was there, he said nothing on her behalf. Id. Similarly, Gonzalez contends that PBA Attorney Campbell consistently disregarded her allegations of discrimination and harassment and that he remarked that, while he would represent her at the proceedings on particular administrative charges she faced, she should find alternative counsel if she wanted to pursue her discrimination complaints. Gonz. Aff. ¶¶ 5, 12, 16.

Gonzalez alleges that one evening in March 1996, two plainclothes police officers appeared at her residence and told her they had been asked to take her somewhere for a drug test (the "Dole Test"). She asserts that, fearing that the officers would harm her, she refused to accompany them and was subsequently charged "for cause" with refusing to take the Dole Test. Gonz. Tr. at 188-90. Alvarez, however, testified to his concern that there was no reasonable suspicion for such a test. Alvarez Tr. at 236-45. Rather, he said, the officers who responded to his inquiries about why the test had been ordered made reference to Gonzalez's being on Markman's "hit list" of troublesome officers wanted off the force. Id. at 224-27.

Dissatisfied with her PBA lawyers for consistently refusing at her disciplinary proceedings to argue her defense of harassment and retaliation, Gonzalez states she retained private counsel to defend the Dole Test charge. However, Gonzalez says she learned in April 1996 that the Police Department would fire her if she did not resign. Gonz. Aff. ¶¶ 55-56; Gonz. Tr. at 485. Thus, Gonzalez alleges that when she and her attorney appeared for a hearing on the Dole Test charge, in order to avoid being fired she signed a resignation form, thereby ending her career with the Police Department.

Gonzalez complains that her resignation did not the end the Police Department's harassment and retaliation campaign against her. Rather, she claims, in June 1996, while driving in the Bronx, she was pulled over for a purported traffic offense and taken into custody because she was driving without her license or identification papers for the vehicle, which had an expired registration and insurance. During discussions with the officers who detained her, including defendant Officer Marc Nell, Gonzalez asserts she informed them she was a former police officer and produced some form of identification to that effect. After that, she was arrested, charged with criminal activity — impersonation of an officer — and held in custody. At the precinct to which she was taken, officers recognized her and knew of her previous complaints against high-ranking officers. Gonz. Tr. at 215-217; Transcript from Deposition of Marc Nell ("Nell Tr.), attached as exhibit 5 to Shoemaker Aff., at 36-37. She was held for 27 hours after her arrest, although that process normally would take 3 to 6 hours. Gonz. Tr. at 223, 243. During that time, she was strip searched, Gonz. Tr. at 207, and forced to take a DWI test despite an acknowledged lack of suspicion by the arresting officer, Officer Nell, that she had been drinking. Nell. Tr. at 9-12, 33, 41-42; Gonz. Tr. at 243. Gonzalez also alleges that the offenses with which she was charged were then pursued by the Police Department with unmerited zeal and that she was ultimately exonerated in court of the wrongdoing of which she had been accused. Plaintiff's Memorandum of Law in Opposition to Motions for Summary Judgment, dated Jan. 24, 2000, at 19.

Gonzalez filed a Charge with the federal Equal Employment Opportunity Commission ("EEOC") on July 11, 1995 alleging both a hostile work environment and retaliation for having filed sexual harassment complaints at the Police Department. On September 20, 1995, she filed an amended EEOC charge alleging more retaliatory incidents. The charge was accompanied by an affidavit containing a chronology of claimed discriminatory and retaliatory acts up to that date. Gonzalez's second EEOC charge based on these events was a filing of further retaliation submitted on May 14, 1996. There she expanded her claim of sex discrimination and retaliation, and, for the first time, named the PBA as a respondent. Based on the initial two charges, Gonzalez received an EEOC Right to Sue Letter on May 24, 1996, and she timely filed this action on August 21, 1996. She later received a Right to Sue Letter in connection with the May 14th charge, from which in March, 1997 she filed in this Court a separate complaint that was subsequently consolidated with the present case.

DISCUSSION

Summary Judgment Review Standard

A summary judgment motion, as articulated in Rule 56 of the Federal Rules of Civil Procedure and by now hallowed by repetition in case law, may be granted only if the pleadings and all the evidentiary material filed in support and opposition "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing the record and deciding the request, the Court must resolve all doubts and ambiguities and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

"In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). Although the Court is obligated to resolve ambiguities in favor of the non-movant, that party must do more than conjure some metaphysical doubt as to the material facts. See Matsushita, 475 U.S. at 587. Bare polemics cannot defeat real evidence and, conclusory allegations unsupported by demonstrable facts will not suffice to create a genuine issue.See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996);Hutnik v. Security Messenger Servs., No. 98 Civ 6481, 1999 WL 619592, *3, *4 (S.D.N.Y. Aug. 16, 1999) (citing Delaware v. Hudson Ry., 902 F.2d 174, 178 (2d Cir. 1990))

I. THE CITY DEFENDANTS' MOTION

The City Defendants argue as the legal basis for their motion that almost all of Gonzalez's harassment and much of her retaliation claims are not related to sex nor to her engaging in a protected activity. In any event, the City Defendants argue, Gonzalez's charges are time-barred because they are based on incidents which occurred more than 300 days prior to the filing of Gonzalez's two EEOC charges, thus falling outside the Title VII statute of limitations. Moreover, they contend that Gonzalez's accusations amount to no more than isolated incidents involving various officers at different commands acting independently, that no official policy connects these individuals with the incidents Gonzalez portrays, and that the alleged harassment conduct does not constitute discrimination. The City Defendants further contend that Gonzalez's constructive discharge claim should be dismissed because Gonzalez resigned voluntarily and that her state and city discrimination charges cannot be considered part of this action because she elected a local administrative remedy to pursue them.

Gonzalez's first EEOC claim was filed on July 11, 1995; the second was filed on May 14, 1996. The pertinent 300-day periods therefore expired on September 14, 1994 and July 20, 1995. respectively.

A. Title VII

Title VII, 42 U.S.C. § 2000e, et seq., was enacted in 1964 in order to ensure equality of employment opportunities for all citizens. See Alexander v. Gardner Denver Co., 415 U.S. 36, 44 (1974). The statute provides that it is unlawful for an employer

to discharge any individual, or otherwise to discriminate against any individual with respect to. compensation, terms, conditions, or privileges of employment, because of such individuals's race, color, religion, sex, or national origin. . . .

42 U.S.C. § 2000e-2 (a)(1).

Congress, in enacting Title VII, sought administration of the law in a manner intended to encourage informal methods of conciliation and voluntary compliance by employers. "To this end, Congress created the Equal Employment Opportunity Commission and established an administrative procedure whereby the EEOC `would have an opportunity to settle disputes through conference, conciliation and persuasion before the aggrieved party was permitted to file a lawsuit.'" Id.; accord Occidental Life Ins. Co. of California v. E.E.O.C., 432 U.S. 355, 366 (1977). A person who seeks to complain of discrimination by an employer pursuant to Title VII must first file a charge with the EEOC within 180 days of the events underlying the complaint. In states such as New York which have established similar administrative agencies, the charges may be filed simultaneously with the state authorities, and the limitations period is extended to 300 days. After the EEOC has had the opportunity to investigate a complaint for 180 days, it may issue a Right to Sue Letter, allowing the complainant to litigate the claim in a federal district court.See 42 U.S.C. § 2000e-5 et seq.

The City Defendants argue that many of Gonzalez's claims are time-barred. Gonzalez argues that the events occurring prior to the EEOC limitations period are elements of a continuing violation and that they are thus appropriately considered as part of her Title VII claims. Before addressing this contention, the Court must first assess whether Gonzalez has provided evidence of timely events of harassment, retaliation and discrimination to support her Title VII charges. The City Defendants contend that Gonzalez has not sufficiently established a Title VII claim because sexual considerations had no bearing on many of the discriminatory incidents she describes.

B. Sexual Harassment

Title VII jurisprudence has established that "sexual harassment in the workplace violates `Title VII's broad rule of workplace equality". Karibian v. Columbia Univ., 14 F.3d 773 (2d Cir. 1994) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). Such harassment may give rise to liability when it occurs by means recognized as actionable. Two legal theories of sexual discrimination are now well-settled. First is engaging in "quid pro quo" threats to use a worker's "submission to or rejection of [unwelcome sexual] conduct by an individual . . . as the basis for employment decisions affecting such individual." 29 C.F.R. § 1604.11 (a)(2). See Karibian, 14 F.3d at 777. The second entails creating a hostile work environment of "`discriminatory intimidation, ridicule and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment.'" Karibian, 14 F.3d at 779 (quoting Harris, 510 U.S. at 21). Gonzalez asserts that she was subjected to both forms of harassment.

1. Ouid Pro Ouo

Gonzalez's quid pro quo claim relates to events that occurred between 1992 and June 1994 during her tour in the 45th Precinct. She alleges that conditions of her employment were affected by her rejection of Powell's sexual overtures. See Burlington Indus. v. Ellerth, 524 U.S. 742, 754 (1998) (finding that, "[w]hen a plaintiff can prove that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands," she can succeed on a theory of quid pro quo sexual harassment under Title VII). However, when a claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim, which requires a showing of severe or pervasive conduct.See id.

Gonzalez's particular claim in this regard centers entirely on actions by Powell that occurred well outside of the 300-day limitations period dating back to September 14, 1994. Gonzalez does not allege any sexual demands or related threats by any other officers after her transfer from the 45th Precinct in June 1994. None of the evidence she produced points to any form of quid pro quo sexual harassment after that date. Although Gonzalez asserts that a number of the defendants willfully colluded to force her to refrain from filing harassment charges against them, she presents no evidence of having suffered any tangible employment actions reflecting executed threats causally related to her rejection of advances or demands based on sex. See Karibian, 14 F.3d at 778 ("The relevant inquiry in a quid pro guo case is whether the supervisor has linked tangible job benefits to the acceptance or rejection of sexual advances.") In fact, Gonzalez concedes that during her tour at the 50th Precinct neither Kissik nor Praskash sexually propositioned her or used sexually explicit gestures. Gonz. Tr. at 29-30, 36-37, 80-81. Absent such demonstrable proof, as a matter of law, a complaint of quid pro quo sexual harassment cannot be sustained. See id. Accordingly, the Court concludes that Gonzalez's quid pro quo allegations are barred by the statute of limitations and grants the City Defendants summary judgment as to these claims.

2. Hostile Work Environment

Gonzalez also alleges that the City Defendants' conduct prior to and after September 14, 1994 subjected her to sexual harassment through their creation of a hostile work environment. In order to establish a claim of this form of sexual harassment, a plaintiff must show the workplace to be "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter conditions of the victim's employment", as so perceived not only by a reasonable person. See Harris, 510 U.S. at 21 (1993) (citations and internal quotations omitted). The determination of whether an environment is sufficiently hostile requires an inquiry into the frequency of the conduct, its severity, whether it physically threatens or humiliates or is just merely offensive, and whether it unreasonably interferes with an employee's work performance. See id. at 23. Conduct deemed merely offensive is not actionable under Title VII, although if hostile actions do cross the threshold, a plaintiff "need not endure threatened or actual physical assault before a reasonable fact finder could conclude that she endured `severe' harassment within the meaning of Title VII," Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426 (2d Cir 1999), nor need the plaintiff show tangible economic injury, see, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64-65 (1986)

Gonzalez has demonstrated issues of material fact sufficient to satisfy the adverse employment action element of a hostile environment claim. She alleges numerous incidents both within and outside of the 300-day statute of limitations period that portray severe or pervasive harassment. The hostile environment Gonzalez portrays commences with Powell's treatment of her during Gonzalez's posting at the 45th Precinct. While the evidence Gonzalez introduces does not indicate that she suffered tangible employment action sufficient to sustain a quid pro quo action, the various incidents involving Powell's unwelcome sexual overtures do raise issues as to whether Gonzalez was subjected beginning then to a working environment characterized by severe or pervasive hostility, abuse, intimidation, insult and other offensive conduct that would make out a case of hostile environment discrimination. See Meritor, 477 U.S. at 65-67;Karibian, 14 F.3d at 779.

Gonzalez attests that she felt pressured, cornered and uncomfortable by Powell's rearranging her work schedule in order to take her out to lunch or drinks, by his touching her and by showing her suggestive photographs. Powell also allegedly denied her the benefit of days off that Gonzalez selected, remarking that Gonzalez was not "playing the game." The combination of these incidents eventually prompted Gonzalez to file her internal OEEO complaint accusing Powell of sexual discrimination. Following her formal charge, Gonzalez asserts, Powell became abusive, threatened her, assigned her patrol duties outside the precinct, and accused her of stealing a picture of his. Powell's reaction, and the suggestions of other supervisors, according to Gonzalez, drove her to request a transfer from the 45th Precinct.

Gonzalez asserts that a similarly hostile environment greeted her upon her arrival at the 50th Precinct and pursued her continuously through numerous subsequent tours of duty. According to Gonzalez, the particulars she describes indicate that she was spoken to offensively; regularly singled out by designations of undesirable tasks and postings; suspended or unfavorably reassigned; compelled to surrender her guns; exposed to life threatening risks and injury on the job; required to undergo psychiatric evaluation; ordered to take drug tests; accused of theft; constantly picked on; wrongfully arrested and criminally charged; investigated and punished with unusual severity for minor infractions; assigned stigmatizing duties; denied requested sick leave and inconvenienced in taking vacation days; and finally forced to resign.

Drawing reasonable inferences in Gonzalez's favor as the nonmovant on these motions, this Court finds that the extensive catalog of abusive misconduct, intimidation and adverse employment actions she claims she endured at the hands of different segments of the Police Department raises triable issues of fact as to whether the various events constitute, as City Defendants contend, isolated and unconnected incidents, or, as Gonzalez accuses, a concerted pattern of harassment that objectively may be regarded as sexually related and as more than merely offensive, but rather severe or pervasive conduct that may be ascribed to or deemed a harassment policy designed to rid the police force of officers who complain of sexual harassment.

The Court here notes three considerations which may be regarded as out of the ordinary and upon which the Court's conclusion is partly grounded. First is the cumulative effect of the alleged abusive behavior and discriminatory employment actions, which a reasonable jury could find may have produced a severe alteration of the conditions of Gonzalez's employment with the Police Department. Any one of these experiences, or even a number of them combined, may seem an exceptional episode in the lifetime of any person. But for such a patterned ordeal to afflict the same individual on the job inside a few years falls well beyond the succession of adversities that reasonably may be ascribed to sheer coincidence, to the fault of fate or to what the laws of probabilities would predict chance unaided by human devices and interventions would randomly visit upon the same soul.

Second are the pervasiveness, the proportions and the duration and upper reaches the alleged wrongful conduct assumed, in order, as here charged, to cause the heavy brass of the Police Department to fall upon one officer. The factual record Gonzalez has produced suggests that what is at issue here does not entail an isolated dispute between two consenting adult police officers, male and female, regarding events that may or may not have occurred within their zone of privacy in a remote precinct of their own lives. Rather, the pathway of tribulations Gonzalez describes trailed her through four distinct workplaces, at each station the alleged adverse actions directed by the supervisor in charge, and with the track ultimately pointing to senior managers in the Police Department's central command.

Finally, and critical to this Title VII inquiry, is the causal link to the sexual dimension of the case. The acts Gonzalez complains of, if proved, did not occur only because Gonzalez is a woman, or because she may have been a particularly troublesome or truculent woman viewed as a shrew in a male world, or even because her sensibilities rendered her incapable of withstanding the social order, rigors and peculiarities of comportment uniquely demanded for professional survival in a male-dominated environment. Instead, the accusations Gonzalez levels, supported by evidence on the record, raise triable issues as to whether, as the City Defendants argue, there was no sexual basis for the conduct Gonzalez portrays, or whether the saga of adversities she details causally traces to her one distinction: that she not only spurned the sexual advances of a former supervisor but filed formal charges against him denouncing his unwanted attentions. On this record, this Court believes, Gonzalez's documentation raises genuine issues of material fact from which a jury may reasonably determine whether the behavior Gonzalez repeatedly complained of was so widespread, consistent, interrelated and continuous as to constitute a harassment "policy" imputable to the City Defendants.

C. Retaliation

Title VII also makes it unlawful for

an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3 (a).

On a motion for summary judgment where the facts underlying a retaliation claim have been called into question, (1) plaintiff must demonstrate a prima facie case of retaliation, (2) defendant then has the burden of pointing to evidence that there was a legitimate, non-retaliatory reason for the adverse employment action complained of, and (3) if the defendant meets its burden, plaintiff must demonstrate by sufficient evidence that a reasonable jury could find the proffered legitimate reason merely a pretext for impermissible retaliation. See Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 764, n. 5 (2d Cir. 1998) (citingGallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998)). To establish a prima facie case of retaliation, a plaintiff must show that (1) she participated in a protected activity known to the defendant and that (2) the defendant took adverse employment action against her (3) on account of her engaging in protected activity. See Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)

Gonzalez has provided ample evidence of widespread knowledge within the Police Department of her sexual harassment complaints, both to the internal OEEO and to the EEOC, to establish the first prong of a prima facie retaliation case.⁴ Not only does Gonzalez testify in her deposition that she told many of the defendants about her claims of harassment and about her belief that she was being retaliated against, but depositions of many of the police officer defendants also indicate widespread knowledge among Police Department officials about Gonzalez and her sexual harassment allegations.

4 Informal complaints, including complaints to management, constitute protected activity under Title VII. See Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990); Robinson v. Time-Warner Inc., 92 F. Supp.2d 318, 332 (S.D.N.Y. 2000)

In large part, the allegations of adverse employment actions underlying Gonzalez's retaliation claim are the same as those that

support her hostile environment claim. Gonzalez alleges that the City Defendants engaged in a broad campaign of harassment that was both sexually based and retaliatory. She contends that she was subjected both to quid pro quo sexual harassment and to a hostile environment of sexual harassment by the City Defendants. Gonzalez also charges that she was victimized by continuous retaliation on account of her complaints to various officials about that harassment, beginning in the spring of 1994 immediately following the internal complaint she lodged against Powell and continuing even beyond her allegedly forced resignation from the Police Department in 1996. These claims raise factual issues as to whether they are interrelated; whether they derive from the same cloth and pattern and are woven by a common thread.

In effect, Gonzalez argues that the same harassing behavior by which the City Defendants created a hostile work environment for her also constituted retaliation essentially motivated by the same animus against her for exercising her right to complain about being sexually harassed. In other words, under Gonzalez's theory, not only was she punished for having exercised a right to complain of sexual harassment but also, by design or effect, the City Defendants constantly distinguished Gonzalez negatively from similarly situated male officers who, in the hostile environment she alleges, were not victimized by harassment. Moreover, Gonzalez suggests that because the harassment was constant, she could not distinguish whether the motive behind a particular act of harassment was retaliatory or based on sexual or gender considerations alone. See Gonz. Tr. at 321-22.

For the purposes of this summary judgment motion, the Court declines to draw the fine factual distinctions between the instances of harassment and retaliation that might separately support each of Gonzalez's claims. Gonzalez has alleged a longstanding, concerted campaign of harassment and retaliation reaching beyond a local precinct to high ranking officials at the Police Department's headquarters. A trier of fact could reasonably conclude that particular incidents of the City Defendants' alleged misconduct may support either or both a hostile environment of sexual harassment and an instance of retaliation against Gonzalez intended to punish her for reporting such conduct and to discourage her from exercising her rights again. To the extent that Gonzalez's evidence might sustain her allegations, the continuous and interrelated harassment campaign she portrays would inextricably implicate the sexual element that sustains her original harassment charges by having the effect, if condoned or not adequately remedied, of promoting in the workplace acquiescence in and even the acceptability of the underlying sex-based inequality and misconduct. The Court, therefore, finds that as a whole Gonzalez has produced a sufficient factual record to raise triable issues regarding her claim that she suffered tangible employment consequences connected to City Defendants' actions. At trial, the evidentiary presentation before the jury may be more finely pared to satisfy Gonzalez's burden of proof as to every element of each claim.

The third prong of the prima facie case for retaliation requires that Gonzalez show that the adverse employment actions she alleges were directed against her on account of her protected employment activity of complaining of sexual harassment. The requisite causal connection between a protected activity and an adverse employment action may be established either "indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." See Johnson, 931 F.2d at 207 (citing De Cintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987)). On this point, in Gonzalez's amended EEOC charge, filed on September 20, 1995, she asserts that shortly following her July 11, 1995 EEOC claim, she informed Praskash of her filing and was thereafter subjected to intensified retaliatory measures that prompted her amended EEOC complaint. These actions, as there attested, included a suspension without pay; unlawful imprisonment; placement on restricted duty; removal of her weapons and shield; and transfer to the Court Section. Gonzalez also cites the testimony and notes of Adam Alvarez indicating that Kissik and Markman manifested a retaliatory animus toward Gonzalez that was confirmed by Alvarez's notes from conversations with other officers working with them.

The Court finds that Gonzalez has made a sufficient prima case of retaliation based on events that also sufficiently sustain Gonzalez's claim of hostile environment sexual harassment. Each of these claims is supported by actions taken by City Defendants within the 300 days preceding Gonzalez's first EEOC charge. But each claim would rest on a stronger footing to the extent that the foundation encompassed alleged incidents that occurred prior to the limitations period under Title VII. The Court thus returns to the question here in dispute as to whether such prior events may fit within the "continuing violation" doctrine.

D. Continuing Violation

A continuing violation may be found "where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Quinn, 159 at 766 (citingCornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994)). Additionally, "multiple incidents of discrimination, even similar ones, that are not the result of discriminatory policy or mechanism do not amount to a continuing violation." Quinn, 159 F.3d at 765 (citing Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)) (citation and internal quotations omitted).

To establish a continuing violation claim, courts have generally weighed three aspects of the alleged incidents: (1) subject matter: whether the alleged acts involve the same type of discrimination; (2) frequency: whether the acts seem to be recurring or are more in the nature of isolated assignments or decisions; and (3) degree of permanence/notice: whether the act has the degree of permanence which should trigger an employee's awareness and duty to file formal charges. See Brennan v. City of White Plains, No. 97 Civ. 2709, 1998 WL 75692, *5 (S.D.N.Y. Feb. 20, 1998) (noting that the court followed, as have others in the Second Circuit, the test for continuing violations elaborated inBerry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971 (5th Cir. 1983)).

An application of the continuing violation doctrine in regards to hostile environment harassment incidents may be supported by the same evidentiary basis upon which a later hostile work environment claim is grounded. See Cornwell v. Robinson, 23 F.3d 694, 704 (affirming a ruling of a continuing violation supported by the same evidence of pervasiveness that established the plaintiff's hostile environment claim). The court inEngelmann v. National Broadcasting Co., No. 94 Civ. 5616, 1996 WL 76107, *15 (S.D.N.Y. Feb. 22, 1996), noting the overlap of the application of continuing violation principles and hostile work environment claims, declared that: "[b]y its nature, a claim of `hostile environment' discrimination turns on the existence of continuing violation. . . ." See Shull v. Rite Aid Corp., No. 94 Civ 8552, 1997 WL 289460, *5 (S.D.N.Y. May 30, 1997);Harris, 510 U.S. at 21.

Here, Gonzalez's hostile work environment claim introduces a factual and conceptual dispute concerning the first two prongs of a continuing violation inquiry: subject matter and frequency. The City Defendants contend that the actions Gonzalez complains of were not sexually-based nor did they reflect the same form of discrimination. In other words, they argue that, even if the discriminatory acts which Gonzalez asserts occurred after her sexual harassment charge against Powell in May 1994 may be viewed as retaliatory, they were neither sexually-related, continuous nor connected enough to Powell's alleged discrimination to constitute a continuing violation of sexual harassment. Gonzalez contends, on the other hand, that the City Defendants engaged in a concerted campaign against Gonzalez that comprised not only sexual harassment but, through much of the same conduct, also retaliation against police officers who filed sexual harassment complaints.

The conceptual question implicit in these arguments may be framed in a hypothetical based on the facts of this case. It is whether, assuming the alleged discriminatory conduct is grounded neither on quid pro quo conduct nor on a distinct claim of gender based disparate treatment, as the Court finds to be the case here, sexual harassment may nonetheless be founded on the theory of a hostile environment. In this event, the hostile environment would arise not so much, as in the typical case, from explicitly sexual remarks, lewd gestures, displays of suggestive materials or other such manifestly offensive sexual conduct, but from a substantial pattern of reprisals causally linked to a victim's formal complaint of sexual harassment. Specifically, the harasser's response to the victim would take the form of verbal abuse, insult, intimidation, unfavorable or inconvenient changes in work assignments and denials of certain job-related privileges or benefits. The model assumes, however, that none of these reprisals standing alone may be material enough to constitute a tangible employment action on which a determination of retaliation could be based, but that, viewed objectively, the cumulative effect of the harasser's reaction may be severe or pervasive enough to "alter the conditions of the victims's employment." Lee Harris, 510 U.S. at 21.

This theoretical issue may be resolved by two approaches. First, the accumulation of small reprisals may be aggregated so as to permit consideration of their impact in their totality and to support their being deemed sufficient to constitute adverse employment action sustaining a claim of retaliation for engaging in a protected activity. This approach would require the plaintiff, to establish a prima facie case, to demonstrate that the series of actions at issue could, examined together, qualify as an adverse employment action or actions. It would then bring into play, on a summary judgment motion, the burden-shifting analysis demanded for claims of discriminatory retaliation. See Quinn, 159 F.3d at 764.

Alternatively, as Gonzalez's theory here suggests, the combination of abusive, insulting, or intimidating discriminatory reprisals triggered by a victim's formal sexual harassment complaint may itself be treated as constituting sexual harassment under the hostile environment theory. On this approach, to establish a claim, plaintiff would need to demonstrate that, both objectively and subjectively, this conglomeration of retaliatory conduct was sufficiently severe and pervasive to alter the conditions of her employment. The Court notes that on this construct, a sexual harasser, and in particular a supervisor, whose unwelcome advances have been rejected and against whom a sexual harassment complaint is lodged, conceivably could retort by launching a campaign of calculated reprisals intended to further harass the victim but by other methods, by segmented measures, none of which could cross the threshold of a significant change in employment status constituting a tangible employment action. See Burlington, 524 U.S. at 761 (citing as examples of tangible employment actions "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits"). Taken as a whole, however, these vengeful means may be no less pervasive or severe conduct, and may affect the conditions of employment just as much as the explicitly sexual behavior by which the harasser may have created a hostile environment prior to the victim's complaint.

The Court has found a dearth of authority directly on point addressing the precise conceptual distinction here described. Hostile work environment jurisprudence, however, is grounded on conduct that "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Meritor, 477 U.S. at 65. The theory assumes a demonstration of a workplace "permeated with discriminatory intimidation, ridicule and insult" severe or pervasive enough "to alter conditions of the victim's employment." Harris, 510 U.S. at 21. Although the standards have derived from cases generally involving the harasser's explicitly sexual conduct which occurs before the victim complains and which forms the basis for the sexual harassment claim, it is not to say that an atmosphere of equally pervasive and severe intimidation, ridicule, and insult, as in this case, could not also fall upon the victim immediately thereafter on account of the sexual harassment complaint. From the perspective of the psychological toll on the victim and her ability to perform effectively on the job, as well as from the Title VII objective of workplace equality, the consequent unreasonable interference may be no different. It may create an anomalous result under Title VII, however, for an environment to be deemed sexually "hostile" under the first set of facts but not under the other. See Wise v. New York City Police Dep't, 928 F. Supp. 355 (S.D.N.Y. 1996) (denying a motion for summary judgment where the court found factual issues as to whether the Police Department had a policy or practice that sustained both a claim of hostile work environment and retaliation against a police officer who complained about sexual harassment).

For the purposes of this case, the Court need not resolve the conceptual issues here framed because either approach would yield the same result on the evidence presented. The case may proceed on Gonzalez's sexual harassment theory that the application of the continuing violation doctrine here may be grounded either on a theory of hostile environment arising from pervasive or severe conduct comprising reprisals causally related to Gonzalez's filing of a discrimination complaint, or on the basis of retaliation, consisting of the combination of the various abusive incidents, insults, intimidation and employment actions Gonzalez describes occurred in the wake of her original discrimination charge against Powell. The Court thus concludes that the record supports a finding that the subject matter and frequency prongs of the continuing violation inquiry are satisfied by the evidence Gonzalez has produced. This evidence includes the incidents of the hostile environment Powell allegedly created through his unwelcome sexual advances during Gonzalez's assignment at the 45th precinct, and the charges of abusive conduct that ensued from Gonzalez's resulting complaint against Powell, that behavior pattern beginning with Powell's reaction and continuing with similar forms of insults, intimidation and ridicule Gonzalez claims she also encountered from the other City Defendants at her subsequent posts.

With respect to the third prong concerning notice, to assess the point at which a plaintiff may be deemed on notice that she is a victim of discrimination, the Court may ask "when a layperson, not trained in the law, would have been aware of her right and duty to assert her legal claim." Petrosky v. Dep't of Motor Vehicles, 72 F. Supp.2d 39, 52 (N.D.N.Y. 1999). ThePetrosky court acknowledged that the beginning and end of a pattern of sexual harassment in the work place is not always readily apparent, and observed that "a plaintiff who sues too soon runs the risk of having filed suit before the conduct can be deemed sufficiently pervasive, while a plaintiff who waits risks having early incidents deemed untimely." Id. The Seventh Circuit in Galloway v. General Motors Parts Operations declared the continuing violation doctrine applicable if the plaintiff can tell only by hindsight that earlier acts represented the early stages of harassment. The court recognized that the early stages of sexual harassment "may not be diagnosable as sex discrimination, or may not cross the threshold that separates the nonactionable from the actionable. . . ." 78 F.3d 1164, 1166 (7th Cir. 1996). In a similar vein, the court in Moskowitz v. Purdue Univ. stated that, "[i]f it is only with the benefit of hindsight, after a series of discriminatory acts, that the plaintiff can realize that he is indeed a victim of unlawful discrimination, he can sue in regard to all of the acts provided he sues promptly after learning their character. . . ." 5 F.3d 279, 281-82 (7th Cir. 1993)

In the case at hand, Gonzalez complains of a variety of ways in which she was harassed — including vulgarity directed at her by City Defendant officers, rearrangement of her work schedule to her detriment and to benefit other officers, excessive nit-picking and disproportionate punishment for minor infractions, denial of vacation time, and general sexually motivated discriminatory conduct. She alleges that while these actions were carried out by numerous different officers in different work locations, they were part of a concerted effort by the Police Department to punish her for having complained of sexual harassment on prior occasions. The City Defendants respond that, to the extent that the incidents described by Gonzalez could be construed as harassment, she was on notice of the violations as they occurred and was obliged, but failed, to file her complaints based on those events with the EEOC in a timely manner. Gonzalez, however, counters that the actions she cites were part of a practice by the Police Department, of which she was initially unaware, of harassment and retaliation directed at her.

Having concluded above from the record produced that the evidence presents issues of fact as to whether the harassment and retaliatory incidents Gonzalez alleges were sustained, related and frequent enough to constitute a policy, the Court now considers whether a genuine issue here exists concerning the extent of Gonzalez's notice prior to July 11, 1995 that would have imposed upon her before then a duty to file the harassment and retaliation claims she alleges. As an initial matter, for the purposes of this inquiry, the Court must ask "notice of what?" In response, it is essential to distinguish between the City Defendants' argument characterizing the events here as isolated incidents involving conduct by various officers independent of one another, and the larger concerted campaign Gonzalez alleges was directed against her with the knowledge, endorsement and active personal involvement by high ranking officials of the Police Department's upper echelons motivated by a goal to drive her out of the police force. The chronology Gonzalez appends to her September 20, 1995 amended EEOC charge indicates that immediately upon her return to the 50th Precinct in mid-June 1995 from the Bronx Court section, where she had served since August 1994, Gonzalez encountered what she alleges was a hostile reception and harassing measures similar to the reaction she described upon first reporting to the 50th Precinct in June 1994. Within one month of her return, Gonzalez filed her first EEOC charge.

Drawing reasonable inferences in favor of the non-movant, the Court finds it plausible that, while Gonzalez concedes having had impressions and suspicions that many of the events which followed her filing a May 1994 internal charge of sexual discrimination against Powell may have been motivated by retaliation, she may not have become aware of the full magnitude of the adverse actions taken against her until much later. In this regard, it bears recalling the Petrosky court's observation that not all conduct that a plaintiff perceives retrospectively as retaliatory may provide sufficient grounds to satisfy the elements of a retaliation claim contemporaneously filed. Incidents may be isolated and sporadic, especially during the early stages of the misconduct. At that point, they may not be fully comprehended and their cumulative weight may or may not rise to a level that satisfies the requisite evidentiary threshold to sustain a discrimination charge.

Consistent with the conceptual grounding of the continuing violation doctrine, when subsequent events reveal that what at an earlier point may have seemed incidental, unconnected acts by independent actors in fact may comprise related components of a much larger pattern of conduct the scope of which does not become apparent until later, a plaintiff should not be charged with notice that would foreclose a claim encompassing the earlier incidents. In that event, as is the case here, the theory of harassment and retaliation plaintiff alleges should not be construed to exclude the early incidents which, standing alone, may not have been sufficient to state a claim and whose larger context plaintiff may not have appreciated in time to file an official discrimination charge. Rather, in these circumstances, the hostile environment and retaliation claims should comprise the whole larger design later realized which ultimately gave rise to the timely discrimination complaint, and of which the earlier conduct was a related part only subsequently understood.

Here, the various separate instances of alleged harassment and retaliation Gonzalez attributes to Powell, Kissik and Praskash may not necessarily equate to the complete scope of the discriminatory campaign which, by her account, allegedly implicated other more senior officials of the Police Department. Nor could the entire magnitude and gravity of the whole drama be fully appreciated without the opening scenes and the supporting roles played by the first actors. Accordingly, even if Gonzalez felt that retaliatory animus may have been part of the reason for the behavior Powell, Kissik and Praskash displayed toward her, an issue of fact exists as to whether she reasonably could have failed to understand that the adverse employment actions she suffered might have been but part of the larger scheme of retaliation she later charged the Police Department mounted against her. By a fair reading of Gonzalez's theory, it is this bigger act and the larger cast that she puts on trial here.

Thus, the Court finds that Gonzalez has established a genuine issue of material fact concerning whether she became aware of the full extent and discriminatory pattern of the City Defendants' actions only after enduring their conduct for a length of time sufficient for the behavior pattern and its motive to become apparent. Triable issues exist for the jury to decide whether the record supports Gonzalez's contention that it was only by July 1995 that she reasonably became aware of the pattern and extent of the City Defendants' discrimination and harassment, prompting her then to file her first EEOC charge, or whether, as the City Defendants argue, Gonzalez should have been aware that the time to assert her rights had arrived long before she filed her first EEOC complaint in July 1995. The Court concludes that Gonzalez has satisfied the elements to sustain invocation of the continuing violation doctrine, thereby enabling a tolling of the statute of limitations with regard to allegations of hostile environment and retaliation incidents that occurred prior to September 14, 1994.

E. Gender Discrimination

Gonzalez also brings a separate gender discrimination claim against the City Defendants, alleging that they deprived her of equal employment opportunities on the basis of gender. The analysis of this claims yields a somewhat different outcome. To state a claim of discrimination under Title VII, a plaintiff must show that "she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred." Montana v. First Fed. Sav. and Loan Ass'n of Rochester, 869 F.2d 100, 106 (2d Cir. 1989); Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997). Conceptually, this claim is distinct from that of hostile environment sexual harassment, which, while also necessarily constituting a type of discrimination grounded on gender, requires different pleading and proof than a disparate treatment claim. See, e.g., Ponticelli v. Zurich American Insur. Group, 16 F. Supp.2d 414, 426-27, 429 (S.D.N.Y. 1998); Rifkinson v. CBS Inc., No. 94 Civ. 7985, 1997 WL 634514, *3 (S.D.N.Y. Oct. 14, 1997) ("claims of gender-based sex discrimination, quid pro quo sexual harassment, and hostile environment work environment sexual harassment . . . are conceptually distinct from one another.").

While the Court finds that Gonzalez's allegations of harassment by the City Defendants support a hostile environment claim to the extent that they grow from the same root of a sexual harassment complaint, Gonzalez has otherwise provided only anecdotal evidence of sporadic incidents to support her contention that she was treated differently from male officers solely on the basis of gender. Moreover, the few reasonably substantial instances when Gonzalez does make some allegation that she was treated unfavorably in comparison to men, as when she says she was not allowed to wear shorts when male officers were, occurred prior to the 300-day EEOC limitations period.

There is a split among district courts in this Circuit about whether in a gender-based claim a woman would have to show that the discrimination she alleges also affected a larger class of similarly situated women, or whether allegations of her own individual disparate treatment would suffice to sustain a gender discrimination complaint. See Brennan, 1998 WL 75692, at *6 (discussing the numerous district court cases within the Second Circuit that arrive at different conclusions on the issue) According to the reasoning of some cases, to support her claim that the discrimination was based on gender rather than on some more individualized reasons, a complainant would have to show that other women in the same workplace had been treated differently from male officers. See, e.g., Vergara v. Bentsen, 868 F. Supp. 581 (S.D.N.Y. 1994). Under this theory, Gonzalez's claim must fail because she has supplied no concrete evidence to support her allegations that the City Defendants' treatment of her was common to her gender and different from its treatment of men.

Gonzalez's gender discrimination claim would fare little better even if she were not required to address how other similarly situated women officers were treated by the City Defendants, but simply to show a discriminatory policy directed by them towards her. See, e.g., Yaba v. Roosevelt, 961 F. Supp. 611, 618 (S.D.N.Y. 1997). This Court would be inclined to accept evidence that Gonzalez individually may have been treated differently on the basis of gender without imposing on her a burden of also demonstrating that the City Defendants treated other women differently as well. It is conceivable that an employer could choose only one or a few women as victims of disparate treatment based on stereotype-informed misconceptions of traditional "femininity", or because of the perceived personal feminine style of particular women. Such conduct would no more serve as a proper basis for adverse employment discrimination than an employer's differential actions towards every woman it hires.

Yet, in connection with her gender discrimination claim, Gonzalez has not sufficiently alleged conduct suggesting that she was discriminated against with respect to conditions of employment solely on the basis of being a woman, as she must in order to sustain a Title VII gender discrimination action, rather than on the basis of her having complained about sexual harassment directed against her or against another female officer. As described above, in evaluating the City Defendants' Rule 56 motion, the Court must construe Gonzalez's harassment claims broadly, drawing reasonable inferences in her favor. So viewed, Gonzalez's allegations must include a sexual dimension, recognizing the causal inseparability of the City Defendants' harassment conduct from the original events of Powell's alleged sexual advances and Gonzalez's formal charge against Powell that allegedly prompted the pervasive campaign of harassment that then ensued, and considering also the interrelated effects on Gonzalez of the sexual harassment and retaliation actions. However, the Court cannot then proceed to conclude, merely on the basis of a bare proposition or supposition, that conduct that may incorporate a sexual/gender element actually constitutes gender discrimination — presumably on the ground that generally the incidence of such sexual harassment more often victimizes women and thus by its very nature is tantamount to gender discrimination.

As occasions of her having been treated differently as a female from males, Gonzalez cites her having been subjected to numerous arbitrary post changes and transfers. However, she offers nothing more than speculation to support a theory that her treatment in this regard was different from that of similarly situated male officers. Gonzalez also alleges several incidents involving Kissik that suggest she perceived he treated her differently from male officers. Specifically, Gonzalez cites occasions in June and July 1994 when she alone was made to change her assigned hours either to benefit a male counterpart or because similarly situated male officers had a "special assignment", and when Kissik refused to allow her to wear shorts on a hot day while the male officers on duty at the same time wore shorts. However, the references in Gonzalez's complaint to these instances are infrequent, and most of them occurred more than 300 days before Gonzalez's filing of her first EEOC charge. The later gender-based allegation that sometime in July 1995 Kissik generally referred to women as "bitches," while inappropriate, is not alone sufficient under Title VII to constitute a reasonable inference of his disparate treatment of Gonzalez in spite of the possibility that the remark may have been more offensive to women. Further, also with regard to these claims, beyond generalized allegations, Gonzalez presents no factual evidence to support the contention that she was treated differently on the basis of gender.

Here the Court must acknowledge a fine-line distinction not unlike the one it declined to draw above to disentangle particular evidence of hostile environment sexual harassment from specific incidents supporting related retaliation. It may seem incongruous to allow sexual harassment claims to proceed while finding insufficient evidence that the same events also may have constituted gender discrimination. The Court does not rule out or minimize the often inextricable relationship between proof of sexual harassment and that of gender discrimination, nor the does it deny the relevance of Gonzalez's proffer to support her gender claim. The predominant theme that emerges from Gonzalez's allegations and proof that she was treated differently, however, manifests a very personal dimension, a distinct ring encompassing discriminatory conduct directed at her not necessarily or only because she is a woman, but because she had filed charges of harassment that offended her superior officers. Only as an incidental strain does Gonzalez's general gender bias pleading emanate from the personal sexual harassment motif that clamors throughout her complaint. Without in any way diminishing the significance of her gender-based claims, or of the genuine perception Gonzalez may have had of her allegations or their effect on her, standing alone the episodic instances Gonzalez cites as evidence of general gender-based discrimination, in this Court's view, are simply too sparse to support a foundation for this claim of discrimination.

Even if the treatment Gonzalez says she suffered might have a disproportionate effect on female officers — to the extent that sexual harassment may be experienced and reported more frequently by females — the Court believes she has not provided enough support from which a trier of fact, based on this contention without more, may draw a reasonable inference of gender-based motive, that the reason for the treatment Gonzalez experienced was that she is a female rather than that she was singled out for retaliation because she had lodged harassment complaints against superior officers. The difference, while subtle, nonetheless exists and is legally significant.

As regards strictly gender-based discrimination there is no ground to explain an alleged instance of disparate treatment other than the victim's natural membership in a biological grouping. As such, all members of the class similarly situated may suffer the consequences of biased conduct through no other personal traits, acts or "fault" of their own to which the discriminatory treatment may also be causally related. Generally, the active and the passive, the innocent and guilty, all suffer alike in cases of disparate actions universally motivated to target a member or members of a class as a whole. Sexual harassment and associated retaliation, on the other hand, though often necessarily intermingled with a gender dimension, typically are more particularized, reflecting a personal distinction that marks one individual in the group as a subject of special attention, not by virtue of the badge of membership alone, but also by a select quality or act uniquely associated with that person that, right or wrong, intervenes as the most immediate cause of the consequential discrimination.

Thus, even if abstractly Gonzalez's pleadings of gender discrimination may challenge the City Defendants' motion and raise a theoretical factual dispute, her evidentiary response does not appear to this Court legally sufficient to create a genuine issue. Polemics, conclusory responses and speculative theories undocumented with factual support do not suffice to overcome a motion for summary judgment. See Kulak, 88 F.3d at 71;see also Matsushita, 475 U.S. at 587 (stating that a nonmovant must show more than "metaphysical doubt" as to the existence of material facts to survive a motion for summary judgment). Without substantial evidence that she was treated differently from men beyond the allegation that she was sexually harassed, the record does not support a finding that Gonzalez has raised triable issues of facts that would sustain a distinct gender discrimination claim. On this basis, therefore, the City Defendants' motion as it relates to Gonzalez's gender discrimination claim is granted.

F. Constructive Discharge

Gonzalez also pleads a constructive discharge claim against the City Defendants. An employer may be deemed to have discharged an employee "not only when it directly dismisses an employee but also when it purposefully creates working conditions so intolerable that the employee has no option but to resign — a so-called `constructive discharge.'" Sure-Tan, Inc. v. National Labor Relations Bd., 467 U.S. 883, 894 (1984). A constructive discharge cannot be established "simply through evidence that an employee was dissatisfied with the nature of his assignments," nor when the employee "feels that the quality of his work has been unfairly criticized," nor when the employee's working conditions are "merely difficult or unpleasant." Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993). Rather, the employer must deliberately render working conditions "so unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Id. at 361 (citations omitted).

The City Defendants here assert that any question as to whether Gonzalez was forcibly discharged or resigned voluntarily from the Police Department is resolved by two facts: that Gonzalez not only checked a box on her resignation form affirming she had resigned voluntarily and that she was represented by counsel as she did so. Gonzalez, however, argues that she was told she would be fired if she did not resign and that she was thus confused as she filled out the form, as evidenced by her having checked both the "yes" and the "no" box in response to the question as to whether she was resigning voluntarily. These circumstances reflect a disputed issue of material fact. If Gonzalez can prove that, in fact, the City Defendants subjected her to an objectively intolerable working environment and that representations were made to her that she would be terminated if she did not resign, she may be able to sustain a constructive discharge claim. See Chertkova v. Connecticut Gen. Life Ins., 92 F.3d 81 (2d Cir. 1996). Because there exists for trial a genuine issue of fact material as to Gonzalez's constructive discharge claim, the City Defendants' motion for summary judgment on this claim is denied.

G. State and City Human Rights Laws

The City Defendants claim that Gonzalez is precluded in this action from making supplemental claims under the State and City Human Rights Laws (N.Y. Exec. Law §§ 296 and 297(9), and N.Y.C. Admin. Code, Title 8, respectively) because she elected to pursue those claims administratively. They assert that Gonzalez elected state remedies for her State Human Rights Law (SHRL) claims by requesting that they be referred to the State or local agency rather than by filing them automatically with the EEOC. Gonzalez contends that she filed all of her EEOC charges through the federal EEOC office rather than with the State and, thus, that she did not elect State remedies for these claims. Gonzalez's attorney at the time she filed the May 1996 EEOC charge also affirms that he submitted her claim directly with the EEOC.

To comply with Title VII's provision that no charge may be filed with the EEOC before the expiration of 60 days after proceedings have been commenced under state or local law, the EEOC automatically refers charges of employment discrimination to local and state agencies and then suspends its own processing and investigation of the complaints for a 60-day deferral period. See Scott v. Carter-Wallace, Inc., 541 N.Y.S.2d 780 (1st Dep't 1989) (citing New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 64 (1980)). New York Executive Law * 297(9) provides that a person may seek relief for asserted discrimination either from any court of appropriate jurisdiction or from the State or local human rights agencies, but not from both. See Scott, 541 N.Y.S.2d at 781-82. However, a 1991 amendment to the Executive Law * 297 specifies that "[a] complaint filed by the equal employment opportunity commission to comply with the requirements of 42 U.S.C. § 2000e-5(c) shall not constitute the filing of a complaint within the meaning of this subdivision."

Here, both Gonzalez and her attorney affirm that they filed Gonzalez's claim directly with the EEOC. The Court is not persuaded that Gonzalez's having checked a box indicating that the complaint should also be filed with the State Division of Human Rights controls the outcome of this issue as a matter of law. Additionally, the State apparently has no record of having received Gonzalez's claims, Shoemaker Aff. ¶ 2, and Gonzalez and her former counsel affirm that they themselves did not file the claims directly with the State. Gonz. Aff. ¶¶ 46-49; Rando Aff. ¶¶ 2, 3. Moreover, it is evident that the State has not responded in the more than four years since these charges were filed, from which this Court finds it appropriate to infer both that Gonzalez did not elect or expect a State administrative remedy for these claims and that none is forthcoming. Accordingly, the motion for summary judgment on these claims is denied.

II. THE PBA MOTION

Gonzalez claims that the alleged harassment and retaliation by the City Defendants was facilitated and furthered by the failure of her PBA delegates and lawyers to represent her adequately, in particular when they engaged just enough to appear — misleadingly, according to Gonzalez — to be representing her. Specifically, Gonzalez alleges retaliatory ineffective representation dating back to at least 1994, the time she became dissatisfied with the response of 45th Precinct PBA delegate Ragogna to her complaints about Powell's conduct. Rather than vigorously representing her or taking any action on her behalf, Gonzalez claims, Ragogna provided no assistance. Instead, after she told him she had filed a formal complaint against Powell, Gonzalez asserts that Ragogna merely warned her of possible retaliation by the Police Department. According to Gonzalez, Sergeant Crowley, her PBA delegate at the 50th Precinct, responded similarly during an August 1995 confrontation between her and superior officers, merely advising her to do as the supervisors ordered, without defending or assisting her.

Gonzalez further contends that the lawyers to whom she was referred by the PBA failed in essentially the same way to represent her adequately — advising her not to take on the Police Department and, during her disciplinary proceedings, refusing to assert as a defense her belief that the proceedings arose out of retaliation and harassment. Gonzalez describes several conversations with attorneys Browne and Campbell in which she asserts they ignored her complaints and refused to assist her in advancing her defense of retaliatory harassment to counter the disciplinary proceedings, instead intimidating her with warnings that she should go along with what the Police Department demanded or else risk possible suspension or firing. Gonzalez asserts that she was particularly prejudiced by two events involving these attorneys. First was a meeting on August 10, 1995 with Campbell at which he advised her to accept a harsh sentence for charges of having refused to sign an assignment notification, and also expressed unwillingness to advance her defenses. Second was the alleged ineffectual representation by Browne at both Gonzalez's June 13, 1994 hearing regarding her appearance in uniform at a court proceeding involving her brother, and at a December 12, 1995 departmental hearing on the charge of refusing to submit to a medical evaluation.

Gonzalez's claim against the PBA appears to proceed on two interrelated theories, that: (1) the PBA's acquiescence in the employer's alleged retaliation and harassment itself was actionable, and (2) even standing alone, the actions of PBA representatives were retaliatory in character and intent. The arguments raise questions about what action reasonably may be required of a union on behalf of a member it knew to be complaining of harassment or retaliation by the employer. Questions of what kind and degree of duty the PBA officials may have owed Gonzalez in this context are key to the analysis of the sustainability of Gonzalez's claims against the PBA.

The allegations that the PBA ignored Gonzalez's complaints, acquiesced in retaliatory action by the Police Department and failed to provide her adequate legal representation must be viewed within the context of the duty owed by the different persons charged with performing them. The police officers serving as PBA delegates and the attorneys the union paid to assist Gonzalez are charged with different obligations, which are called into question by Gonzalez's claim of actionable discrimination resulting from these representatives' alleged failure to act appropriately on her behalf. To the extent that the PBA representatives fulfilled whatever duties they owed to Gonzalez, she cannot base a retaliation claim on their failure to go beyond what such duties demanded.

The PBA's motion for summary judgment challenging Gonzalez's claims argues that (1) most of Gonzalez's claims implicating the PBA are time-barred because they occurred more than 300 days before her May 14, 1996 EEOC charge, which was her first claim mentioning the PBA as a respondent; and (2) Gonzalez cannot make out a prima facie case against the PBA, both because her allegations relating to PBA conduct do not constitute adverse employment actions and because the union cannot be held liable for the quality of legal representation provided by the private attorneys to whom it referred Gonzalez.

In order to determine whether any of the discrimination Gonzalez imputes to the PBA could provide adequate basis for allegations of adverse employment actions by the PBA, the Court first addresses Gonzalez's contention that the Police Department and the PBA sufficiently shared interests so as to enable the claims Gonzalez first articulated against the PBA in the May 14, 1996 EEOC charge to relate back to the claims she had filed in the earlier EEOC charge against the City Defendants. A finding that the parties' respective interests were so interrelated would imply that the PBA, so aligned and acting in concert with the City Defendants, would owe Gonzalez a different set of duties than the PBA, acting as a distinct entity, would owe her.

A. Time Bar

The PBA asserts that the only claims against it that this Court may adjudicate are those which occurred on or after July 20, 1995, which corresponds with the date 300 days before Gonzalez's May 14, 1996 EEOC charge on which Gonzalez first lists the PBA as a respondent. As one response to this argument, Gonzalez alleges that her claims against the PBA should relate back to her previous EEOC charges because they arise out of the same claims and because the PBA was, in fact, mentioned several times in Gonzalez's affidavit attached to her September 20, 1995 amended EEOC charge.

Courts are particularly exacting when analyzing new complaints against an entity not originally charged in an earlier EEOC charge filed against another party. To impute to one person complaints made against an unrelated party may violate fundamental fairness standards of adequate notice and opportunity to be heard, and may offend as well the underlying purpose of Title VII of encouraging informal conciliation and voluntary compliance. See Stache v.International Union of Bricklayers and Allied Craftsmen, AFL-CIO, 852 F.2d 1231 (9th Cir. 1988); see also Alexander, 415 U.S. at 44 (1974).

Thus, in order to find that an unnamed party may be liable for claims alleged in a complaint against another party, the Court must ascertain whether the parties are linked through a shared "identity of interest", such as that of corporate parent companies and their subsidiaries or affiliates, that would necessitate a review of the accountability of both parties together. Courts in this Circuit and elsewhere commonly apply the following four-factor inquiry in evaluating the failure to name a party in a charge before the EEOC: (1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named party are so similar to those of the unnamed party that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether the unnamed party's absence from the EEOC proceedings resulted in actual prejudice to its interests; and (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999) (citing Johnson v. Palma, 931 F.2d 203, 209-10 (2d Cir. 1991)); see also Romero v. Union Pacific R.R., 615 F.2d 1303, 1311-12 (10th Cir. 1980) (citingGlus v. G.C. Murphy Co., 562 880 (3d Cir. 1977))

The PBA asserts that Gonzalez has produced no evidence to support any of these factors. The Court agrees. With regard to the first factor, Gonzalez cannot argue that at the time of her initial EEOC filing she did not know what role she considered the PBA played in the alleged misconduct by the City Defendants' that prompted her EEOC claim. An essential part of Gonzalez's assertion against the PBA is that her September 1995 amendment to the original EEOC filing, by specifying some acts by PBA representatives, was intended to include the PBA as a party despite its not being specifically named as a respondent at that time. Gonzalez cannot, however, simultaneously claim that the EEOC charge incorporated the PBA by reference and that she did not know at the time what role the PBA might have played in the underlying events. Thus, she cannot avail herself of an excuse that she made a reasonable mistake in not understanding who was responsible for the adverse employment actions that affected her. See Hutnik, 1999 WL 619592, at * 3.

In any case, Gonzalez has not alleged any facts to suggest that the interests of the parties here are so similar that Title VII's purpose of encouraging voluntary compliance would be the furthered, rather than hindered, by the joinder of the City Defendants and the PBA, or that the PBA would not need to be named separately in an EEOC charge in order to address related but distinct claims Gonzalez might have solely against the union. Rather, it is clear that to obtain relief from the PBA for its alleged inadequate representation, Gonzalez would have to pursue the PBA separately, rather than through the Police Department. The PBA would be required to appear independently in the EEOC proceedings in order for Gonzalez to secure compliance from it. Likewise, an EEOC decision affecting the Police Department would have no effect on the actions of the PBA. Because Gonzalez offered no evidence countervailing the PBA's arguments that the parties' interests here were not sufficiently identical, she cannot sustain a bare assertion that the City Defendants and the PBA were aligned for the purposes of imputing notice to the PBA of Gonzalez's first EEOC claim and thereby subjecting the PBA to potential liability for the charges there leveled.

The Court further finds that Gonzalez also has not raised a contestable material issue with regard to either the third or fourth Vital factors. Under the third consideration, if the PBA's interests were prejudiced by its absence from the first EEOC proceedings, its interests and those of the City Defendants might also be construed to be identical. In this case, however, the PBA had no role whatever on behalf of either Gonzalez or the Police Department in the earlier EEOC proceedings, nor any interest of its own at stake to protect that required its appearance or participation.

The fourth factor would apply if the PBA had represented to Gonzalez that their union/member relationship was to be carried out only through Police Department officials and channels. However, no allegation or question has arisen here that Gonzalez understood that her dealings with the PBA were to be conducted other than through its union delegates and counsel.

Finally, in this case, the EEOC cannot reasonably have been expected, based solely on Gonzalez's inclusion of several references to PBA delegates in an affidavit attached to her earlier charge against the Police Department, to undertake an investigation of presumptive retaliation allegations against the PBA. Nor would the EEOC have been expected to implicate the PBA in its investigation of wrongdoing based solely on the charges filed against the Police Department, unless the two entities were so clearly interrelated that a claim against one could necessarily constitute a claim against the other. By the same token, without notification of the filing of Gonzalez's original charge naming only the City Defendants and without the PBA itself being listed as a defendant, even if it knew of Gonzalez's first EEOC claim, the PBA also could not reasonably have had notice that Gonzalez's EEOC charge against the City Defendants conceivably might also call the PBA to account. Without the requisite shared identity of interests between the parties, neither the EEOC nor the PBA can be considered to have had notice that Gonzalez's original claim explicitly brought only against the Police Department implicitly was intended to charge the PBA as well.

The Court therefore finds that Gonzalez, having failed to present evidence to support any of the factors promulgated by Vital for establishing an identity of interests between a named and unnamed party in an EEOC proceeding, cannot support the assertion that her earlier EEOC charge, which did not name the PBA as a party, nonetheless encompassed claims against the PBA to which the union must answer in connection with Gonzalez's subsequent EEOC complaint against it.

B. Merits of the Claim Against the PBA

Gonzalez next contends that her claims based on events that occurred prior to July 20, 1995 should be considered as part of a continuing violation by the PBA alone. The Court considers it unnecessary to perform a continuing violation analysis with regard to this argument because it finds that the claims against the PBA alone cannot be sustained regardless of whether the doctrine applied. Stated otherwise, even if the facts here warranted a finding of a continuing violation and, consequently, that allegations implicating the PBA dating back to 1994 could properly be considered, the Court nevertheless finds that Gonzalez has not offered enough factual grounds to establish, under any applicable theory of liability, an adverse employment action taken against her by the union related to her sexual harassment complaints, and thus that she has failed to present sufficient evidence to establish the existence of a genuine issue of material fact with regard to her Title VII claim against the PBA.

In reaching this conclusion, the Court considered whether Gonzalez's allegations, taken as a whole for the purpose of this argument, including actions of PBA delegates and attorneys encompassing events prior to July 20, 1995, could reasonably support Gonzalez's contention that the PBA impermissibly acquiesced in the City Defendants' discriminatory actions directed at her. Having determined that such a claim is not supported here, the Court analyzed whether, nevertheless, the alleged specific conduct by the PBA delegates and the attorneys who represented Gonzalez could independently constitute adverse employment actions entitling Gonzalez to hold the PBA accountable under Title VII.

As a general proposition, unions have an affirmative duty not to acquiesce in an employer's unlawful discrimination. See, e.g., Johnson, 931 F.2d at 208; York v. American Tele. Tele. Co., 95 F.3d 948, 956 (10th Cir. 1987); Woods v. Graphic Communications, 925 F.2d 1195, 1200 (9th Cir. 1991); Romero, 615 F.2d at 1311. This duty, however, has been found to arise in the context of the union's role as representative for its members in negotiating work related policies with employers or under the negotiated employment terms and conditions set forth in the collective bargaining agreement itself. See Johnson, 931 F.2d at 208-09 ("a plaintiff establishes retaliation by showing that the union acquiesces in a company policy that abridges the statutory rights of the plaintiff."); Woods, 925 f.2d at 1200 (citing Goodman v. Lukens Steel Co., 482 U.S. 656, 668-69 (1987)); Bugg v. Int'l Union of Allied Ind. Workers of America, Local 507, AFL-CIO, 674 f.2d 595 (7th Cir. 1982).

The scope of the union's relevant duty to its members has generally developed from members' actions against their labor unions for breach of the duty of fair representation.⁵ Thus, a union may be held liable for failing to represent some members in the same way or to the same extent as other members when the distinction is based on a prohibited criterion such as race or sex. See L.N. McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273, 285 (1976) (holding that a plaintiff has stated a claim for breach of fair representation in alleging that the union did not advocate for the same remedies for all employees and that the protected class status may have been a determinative factor in how it treated different employees in mitigating disciplinary proceedings against them). However, to be actionable, a breach of this duty must be arbitrary, discriminatory and in bad faith. Therefore, "mere proof of an error in judgment is insufficient to sustain a member's burden of showing that his union breached its duty of fair representation." Gorham v. Transit Workers Union of America, AFL-CIO, Local 100, NYCTA, No. 98 Civ. 313, 1999 WL 163567, *3 (S.D.N.Y. Mar. 24, 1999), aff'd., 205 F.3d 1322 (2d Cir. 2000) (table)

5 This question has been treated particularly in the context of race-based Title VII claims against unions, where courts in this Circuit and elsewhere have determined that when a Title VII racial discrimination claim concerns a union's representation of its members, the plaintiff must show: (1) that the [employer] committed a violation of the collective bargaining agreement with respect to the plaintiff; (2) that the union permitted that breach to go unrepaired, thus breaching its own duty of fair representation; and (3) that there was some indication that the union's actions were motivated by racial animus. Ross v. Communications Workers of America, Local 1110, No. 91 Civ. 6367, 1995 WL 351462, *6 (S.D.N.Y. June 9, 1995) (adopting the standard set out in Bugg, 674 F.2d at 598 n. 5); see also Gorham, infra, 1999 WL 163567 at *3. In this Circuit and elsewhere, while courts often cite to the Bugg test in evaluating Title VII claims against unions, and also incorporate the duty of fair representation as an element of an alleged Title VII violation connected with discrimination by the employer, they have often not applied a requirement of a violation of a collective bargaining agreement, see, e.g., Agosto v. Correctional Officers Benevolent Assoc., 98 Civ. 7233, 2000 WL 1028583, *9 (S.D.N.Y., July 25, 2000) (citing Gorham, 1999 WL 163567, at *23, which cited but did not apply the requirement of a CBA violation); Nweke v. Prudential Ins. Co. of America, 25 F. Supp.2d 203, 220-21 (S.D.N.Y. 1998). For a retaliation claim, an adverse action by a union "includes any breach of the duty of fair representation, Agosto, 2000 WL 1028583, at *14. This Court concurs with the reasoning that a finding that the union breached its duty of fair representation is essential to sustain the existence of the Title VII claim on this basis, and considers that the doctrine necessarily applies to appropriate Title VII claims based on factors other than race.

In Johnson, 931 F.2d 203, cited by both parties here as supporting their arguments, an adverse employment action was found in the union's acquiescence in an employer's policy to discontinue any pending grievance proceeding if the employee who brought the grievance filed a complaint with a state agency based on the same employer conduct at issue in the grievance. The case before this Court, however, is distinguishable fromJohnson. The adverse employment action under the Johnson doctrine arises out of the union's conduct in breaching its duty of fair representation under a collective bargaining agreement which establishes the scope of the union's duty to its members. The decision by a union-financed private attorney not to assert, contrary to Gonzalez's urgings, a defense in disciplinary proceedings is not analogous to the refusal of a union to press for a formal grievance when requested by a member, or, as inJohnson, to condition its doing so on the member's withdrawal of a formal discrimination complaint filed with the state, particularly given that the collective bargaining agreement ("CBA") between the PBA and the Police Department specifically mandates the availability of PBA legal assistance only in connection with formal grievance procedures.

Here, Gonzalez does not argue that she requested the PBA to take her grievances against the Police Department to arbitration, as the CBA permits. She relies instead on having filed harassment claims with the Police Department's OEEO and with the federal EEOC, partly in response to the various charges, investigations and disciplinary proceedings the Police Department brought against her. The governing CBA, however, provides explicitly that a "grievance" does not include disciplinary matters, further supporting the PBA's contention that it cannot be held liable under Title VII for acquiescence when Gonzalez did not request the union to file a grievance on her behalf.

Here, the PBA's collective bargaining agreement with the City promulgates procedures governing grievances, and the union contends that it followed established policy and reasonably performed everything legally required of it. Gonzalez's retaliation and harassment allegation against the PBA essentially reduces to a claim of inadequate representation by two different PBA delegates on two different occasions in two different precincts. She contends that the union's feeble efforts on her behalf continued on two separate later occasions when she consulted the two private attorneys recommended and paid for by the PBA — Campbell and Browne. Gonzalez's allegations of affirmative conduct on the part of these PBA delegates and recommended counsel that either constitutes harassment in itself or equates to union acquiescence in known employer misconduct, must be assessed in light of the duties actually owed Gonzalez by the PBA and its particular representatives. While a union's duty of fair representation may not arise only from the specific terms of the CBA, in this case, Gonzalez has not presented facts suggesting that the Union has assumed any other duties toward its members that it failed to provide to Gonzalez.

With regard to the alleged conduct of the PBA delegates, Ragogna and Crowley, both are acknowledged to have been acting on behalf of and under the direction of the PBA in carrying out the CBA. Thus, any cognizable acts of harassment or retaliation on their part may properly be imputed to the union. See, e.g., Atkinson v. Sinclair Refining Co., 370 U.S. 238, 249 (1962) (finding that Congress' intent that a union should be the sole source of recovery for injury inflicted by it policy, as set forth in Lewis v. Benedict Coal Corp., 361 U.S. 459, 470 (1960), "cannot be evaded or truncated by the simple device of suing union agents or members, whether in contract or tort, or both, in a separate count or in a separate action for damages for violation of a collective bargaining contract for which damages the union itself is liable."), overruled on other grounds, Boys Markets, Inc. v. Retail Clerks Union. Local 770, 398 U.S. 235 (1970). Gonzalez alleges that the two PBA delegates not only knowingly acquiesced in the alleged retaliation by the Police Department, but also aided and furthered the City Defendants' misconduct by merely advising her to comply with orders rather than more aggressively assisting her to assert her defense that the charges against her constituted harassment and retaliation.

The PBA representatives' allegedly retaliatory conduct must be viewed in relation to their duties as union delegates. The parties here apparently agree that on the occasions when Gonzalez engaged in confrontations with superior officers and sought assistance from the PBA delegates, they advised her to follow orders and provided her with information about whom she should contact for more substantive legal assistance to press her defenses. But the PBA explains that, according to the terms of the CBA itself, offering such advice and information is the full extent of a delegate's duties in such a situation, taking into account CBA provisions that the existence of a grievance cannot serve to excuse a failure to follow orders. The PBA argues that this contractual obligation means that in situations where Gonzalez was disobeying direct orders, the union delegates could not have done more to assist her. The Court finds these arguments persuasive, and sufficient to shift the burden to Gonzalez to present evidence establishing that :the PBA owed her larger duties and that the conduct of the two delegates themselves was somehow retaliatory. Gonzalez, however, has not met this burden, having brought forth no sustainable evidence indicating that the PBA delegates failed to exert effort or pursue any specific action they were obliged to follow.

The analysis differs with respect to the attorneys. The duties they owed to Gonzalez differed from those of the union delegates. They were also differently situated in relation to Gonzalez and the PBA. Repeated failure on the attorneys' part to represent Gonzalez in proceedings they allegedly acknowledged to be farcical and unfair arguably could constitute a breach of counsel's duty of adequate representation. Gonzalez alleges that the occasions demonstrating the attorneys' flaccid legal assistance were frequent and common enough to form a pattern from which discriminatory purpose could be inferred. On the other hand, the PBA argues that Gonzalez's claims against the attorneys amount to nothing more than legal malpractice and should be denied as Title VII claims against the union.⁶

6 The court notes that cases such as Atkinson, supra, 370 U.S. 238, have been construed as disallowing legal malpractice suits against union-retained attorneys conducting business relating to the collective bargaining process. See, e.g., Montplaisir v. Leighton, 875 F.2d 1 (1st cir. 1989); Peterson v. Kennedy, 771 F.2d 1244 (9th Cir. 1985) (same). Yet, union members may sue the union for breach of the duty of fair representation when the union's attorneys act arbitrarily, discriminatorily or in bad faith. See Peterson, 771 F.2d at 1259. Here, because there is no direct claim against the union of breach of duty of fair representation, the court must analyze whether the actions can constitute a Title VII violation attributable to the PBA rather than merely whether the union may be held liable for actions by attorneys it hires.

The Court agrees that Gonzalez has not presented evidence that these claims fall within the protection of Title VII. Most fundamentally, she offers no facts to indicate that the asserted failings of the attorneys were motivated by a retaliatory animus, either by the attorneys or by the PBA, or that they were part of the City Defendants' alleged conspiracy of harassment and retaliation for which the union might be held liable.

Gonzalez has not presented evidence to indicate that the alleged failures of counsel could be attributable to specific actions by the PBA. The PBA argues that Gonzalez offers no evidence or even assertion indicating that the union interfered in any way with the attorneys' representation of her. Under the CBA, the extent of the PBA's duty to Gonzalez was to provide representation in certain types of proceedings and to assist her in finding and financing legal assistance in other cases. Here, it is not disputed that the attorneys to whom the PBA referred Gonzalez were independent, experienced and reputable. While the PBA might have had a duty to assist Gonzalez in identifying alternative counsel if it received notice that the lawyers it recommended and financed were not fulfilling their professional duties to her, Gonzalez has not alleged that she complained about the lawyers to the PBA, a step which both would have given the PBA notice of these alleged breach of duties and allowed the union to assist her with different representation. Not having been informed by Gonzalez of her discontent with the union-referred attorneys, the PBA could hardly have been required to do any more for her than it did.

Moreover, the Court notes that even if Gonzalez could establish that the PBA could be held liable under Title VII for any adverse employment actions by her lawyers, she has failed to present evidence to show a causal connection between the alleged inadequate legal representation by the PBA-referred attorneys and Gonzalez's protected activity of filing harassment complaints against the City Defendant police officers. Conceivably, such a link might be inferred from a close relation in time between the PBA's actions and Gonzalez's complaints, from suggestive improper comments, from witnesses or documents indicating some collaboration between the employer and the PBA in these matters, or even from statistics or other evidence of similar adverse behavior demonstrated by the PBA against other female officers who had complained of harassment or retaliation. See. e.g., Johnson, 931 F.2d at 208 ("Under well-established principles, a showing that the adverse action directly followed the filing of an administrative charge is sufficient to establish the requisite causal connection."); Romero, 615 F.2d at 1310 (finding summary judgment precluded by genuine issue of fact raised through witness affidavit attesting to conversations between union members and the employer about plaintiff, and deposition testimony that the company and union shared similar concerns about his complaints and were "in the matter together"); United States v. Bethlehem Steel Corp., 312 F. Supp. 977, 992 (W.D.N.Y. 1970) (advising caution with the use of statistics but also noting that "evidence of statistical probability may be considered by a finder of fact.").

Gonzalez refers to conversations with the attorneys in which she says they manifested lack of respect for her or for her asserted defense of sexual harassment and retaliation. But, beyond conclusory allegations, she has not provided any evidence that the attorneys' alleged failure to provide her vigorous and fair representation was causally related to her claims of harassment and retaliation actually perpetrated by Police Department officials. Even if the PBA attorneys acted negligently or unprofessionally in refusing to press valid defenses, declining to pursue her claims in other forums, or expressing lack of respect for her concerns, Gonzalez has not demonstrated a sustainable basis for a legal finding that these actions should be brought to the doorstep of the PBA in the form of adverse employment actions against Gonzalez in fact carried out not by the union, but by her employer as retaliation for legal measures she pursued that offended them. Consequently, here the causal link breaks. In seeking to impute the City Defendants' retahatory conduct to the PBA, Gonzalez has failed to establish by sufficient evidence that the PBA institutionally had the same animus, motive or purpose that actuated the City Defendants' discriminatory conduct.

Nor has Gonzalez shown that the PBA's attorneys' unsatisfactory representation would have been more zealous or competent absent Gonzalez's harassment or retaliation complaints, or that their alleged refusal to assert particular defenses she urged at her disciplinary proceedings was motivated by retaliation for her protected act of complaining about sexual harassment. Further, Gonzalez has not cited any adverse actions by the attorneys specifically connected to or and prompted by her engaging in a protected activity. Nor has Gonzalez offered any evidence of collaboration between the PBA and her counsel, exercise of control over the attorneys by the union, or of their collusion with the employer.

On the basis of Gonzalez's failure to set forth triable issues of material fact to support her harassment and retaliation claims against the PBA, the Court grants the PBA's motion for summary judgment on all of Gonzalez's claims against the PBA. Because Gonzalez has previously voluntarily dismissed her claims of gender and disability discrimination against the PBA, there are no remaining actions involving the PBA, which is hereby dismissed as a party to this case.

ORDER

In accordance with the foregoing, it is hereby

ORDERED that the City Defendants' motion for summary judgment is granted insofar as it relates to plaintiff's allegations of discrimination based on quid pro quo sexual harassment and gender; and it is further

ORDERED that the City Defendants' motion is denied insofar as it relates to plaintiff's allegations of (1) discrimination based on hostile environment sexual harassment and retaliation, including relevant events that occurred prior to September 14, 1994; (2)constructive discharge; and (3) violations of New York State and City human rights laws; and it is further

ORDERED that the Policemen's Benevolent Association's motion for summary judgment is granted in all respects and that the Clerk is directed to enter judgment dismissing the actions against the PBA; and it is finally

ORDERED that, as to the remaining claims, the action proceed to trial on September 18, 2000.

SO ORDERED: