Tierney v. City of New York

Full title: JOANNE TIERNEY, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants

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

Date published: Mar 15, 2007

02 Civ. 2403 (RWS) (S.D.N.Y. Mar. 15, 2007)

Opinion

02 Civ. 2403 (RWS).

March 15, 2007

Attorney for Plaintiffs, ROSEMARY CARROLL, ESQ., Clermont, NY.

Attorney for Defendants, MICHAEL A. CARDOZO, ESQ., Corporation Counsel of the City of New York, New York, NY, By: Jeffrey S. Dantowitz, Esq., Of Counsel.

OPINION

ROBERT SWEET, District JudgePage 1

Defendants the City of New York ("the City"); Raymond Kelly, Police Commissioner ("the Commissioner"); Bernard Kerik, former Police Commissioner ("Kerik"); Howard Safir, former Police Commissioner ("Safir"); Patrick Kelleher, former First Deputy Commissioner ("Kelleher"); James Lawrence, former Chief of Personnel ("Lawrence"); Joseph Dunne, former First Deputy Commissioner ("Dunne"); William Allee, former Chief of Detectives ("Allee"); William Taylor, former Chief ("Taylor"); and George Brown, Chief of Detectives ("Brown") (collectively, the "Defendants"), have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., to dismiss the civil rights action brought by plaintiffs Joanne Tierney ("Tierney"), Carmen Chiclana ("Chiclana"), Brenda Marie Kuerner ("Kuerner"), Chrystel Hannon ("Hannon"), Diana Rohan ("Rohan"), Maria Roman ("Roman"), Jacqueline Zayas ("Zayas"), and Anna V. Gerena ("Gerena") (collectively, the "Plaintiffs"), pursuant to 42 U.S.C. § 2000e, Title VII of the Civil Rights Act of 1964; 42 U.S.C. § 1983; the New York Executive Law, § 296, et seq.; the Administrative Code of the City of New York; and New York Civil Practice Law and Rules (CPLR) Article 78.

The Plaintiffs, female detectives in the New York City Police Department ("NYPD"), have alleged that they have been denied promotion to Detective Second Grade because of discrimination in employment based on gender.

For the reasons set forth below, Defendants' motion for summary judgment is granted in part and denied in part.

Prior Proceedings

The Complaint was filed on March 27, 2002, and an Amended Complaint was filed on July 29, 2002. By stipulation and order of February 7, 2003, the Plaintiffs withdrew their disparate treatment claims with respect to women in general and restricted their claims to acts relating to the particular Plaintiffs.

Discovery proceeded and the instant summary judgment motion was marked fully submitted on August 23, 2006.

The Facts

The facts have been set forth in the Defendants' Statement of Material Facts Not in Dispute ("Defs.' Statement"), Plaintiffs' Response to Defs.' Statement of Material Facts ("Pls.' Response"), and the exhibits and affidavits submitted, and are not disputed except as noted below.

Each Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on March 6, 2002, except for Gerena, who did not file a charge until at least March 26, 2002.

Defendants have supplied a list that accurately states whether the listed detectives were promoted to the rank of Second Grade and, if so, the dates of those promotions. (See Workstel Decl., May 31, 2006 ("Workstel Decl."), Ex. A.) Detectives Clarke, Garcia, Hackett, Hourihan, Huthansel, Lockhart, Perez, Riordan, Slender, Soto, Sullivan, and Wansley all were promoted to Detective Second Grade prior to May 10, 2001. (Id.) Detectives Garcia, Hackett, Lockhart, and Soto were also promoted to Detective Second Grade prior to March 28, 1999. (Id.)

The EEOC issued a report for 2002 which indicates that females constituted 19.1% of the NYPD and 13.7% of NYPD detectives.

1. NYPD Policy and Procedures as to Discretionary Promotions to Detective Second Grade

Pursuant to the Administrative Code of the City of New York, there is within the NYPD a Detective Bureau. Pursuant to the Administrative Code, the Police Commissioner is authorized to designate officers to Detective Third, Second, and First Grade, which designation entitles officers so designated to additional pay.

The policy and procedures of the NYPD with respect to discretionary promotions to Detective Second Grade are set forth in NYPD Order No. 51 and its successor, Interim Order No. 1 of 2002, which describe the procedures to be followed and the criteria to be considered in making recommendations for promotion.

In response to a request from the Police Commissioner or the First Deputy Police Commissioner, recommendations for promotion to Detective Second Grade are initiated at the command at which the detective is assigned, and forwarded to the next level in the chain of command for consideration. The commanding officer of that next level reviews the names submitted from the commands immediately under his jurisdiction, and forwards to the next level a smaller number of names for consideration until a final list of names is presented to the Police Commissioner.

2. Robinson v. City of New York, et al.

On January 22, 1999, female detectives, detective lieutenants, and sergeants filed the complaint in Robinson v. City of New York, et al., 99 Civ. 505 (RWS). The complaint alleged that until 1973, the NYPD excluded females entirely from the rank of police officer; that after females were appointed to the NYPD as police officers, females were disproportionately under-represented in the Detective Bureau; that the NYPD entered into an agreement with the Policewomen's Endowment Association (the "PEA Agreement") which provided, inter alia, for a specific numerical goal for designations of qualified female officers as Detectives Third, Second, and First Grade, which resulted in female officers being representatively designated Detectives Third,¹ Second, and First Grade; that after the PEA Agreement expired, the Defendants failed to fairly consider female officers for designation within the Detective Bureau; and that Defendants had no uniform written standards or procedure for detective grade designations.

1 Under the contract between the City and the Detective Endowment Association and pursuant to Civil Service Law Section 75, competent performance of investigative duties for a period of eighteen months entitles each police officer to designation as Detective Third Grade. Plaintiffs have asserted that this has eliminated gender discrimination in the Detective Third Grade rank. (Pls.' Response n. 2.)

During the course of discovery in Robinson, written procedures were produced which set forth specific criteria for detective grade designations. (Pls.' Ex. 2.) Specifically, NYPD Order No. 51 required that recommendations for detective grade designations be supported by a written statement of reasons and three recent evaluations. These documents were to be forwarded from the detective squad to the Detective Borough and then to the Chief of Detectives. The Chief was to review the documentation and forward recommendations to a Detective Review Board for consideration. With the documentation, the Board was to conduct interviews and make recommendations to the Police Commissioner. The Commissioner was then to make the final determination on detective grade designations.

Discovery in Robinson revealed that: (1) NYPD Order No. 51 was not being followed; (2) recommendations for Detective Second Grade were not being supported by a UF 49,² the document setting forth the reasons in support of the grade designation; and (3) those individuals being recommended for grade designation were called in, but no interviews were being conducted.

2 In police parlance, a UF 49 is a written memorandum from one command to another.

Robinson was settled on May 15, 2001. As part of the settlement, Defendants were required to promulgate uniform, department-wide standards and adopt a procedure for detective grade designation. Defendants were also required to fairly consider all those eligible for designation. On January 18, 2002, new procedures for designation were promulgated in Department Interim Order No. 1 of 2002.³

3 The Complaint herein alleges that during the period May 15, 2001, to January 2002, Defendants continued to make gender-based, discriminatory grade designations in violation of NYPD Order No. 51 and that Defendants did not promulgate a revised order until Defendant Kerik, just prior to his retirement, made designations in violation of the designation procedure of male detectives who had worked with him. (Pls.' Response n. 3.)

3. Defendants' and Kennedy's Testimony

a. Kennedy

Stephen Kennedy ("Kennedy"), Detective Commander of the Bronx from September 2003, testified that in his prior position as the commanding officer of the Office of Equal Employment Opportunity, he was aware of the Robinson litigation. He also testified that he knew that Interim Order No. 1 of 2002 was promulgated as part of the settlement of that action, that he received no departmental training or instruction regarding the Order, and that he was unaware as to how the Order changed the prior order regarding Second Grade designations. In addition, Kennedy testified that in making recommendations for Second Grade designations, he relied solely upon the recommendations of squad commanders and made his selections with his zone captains and executive staff. According to Kennedy, he never examined any records to see if, in fact, the Plaintiffs in this case who were assigned to Detective Borough Bronx were fairly considered for grade designations.

b. Kerik

Kerik served as Police Commissioner from August 21, 2000, to December 31, 2C01. He testified that he had never seen the prior designation procedure but had seen personnel orders in which persons received grade designations from units not performing detective work. Kerik was not able to say whether, in every detective borough, the designation process that was supposed to be followed was being followed. Although Kerik stated that he was aware of the issues raised and the settlement inRobinson, he never addressed the problems raised in Robinson regarding women being passed over for grade designations. According to Kerik, the promotion system for detectives was flawed, but he had taken no action to correct it.

Kerik further testified that just before he left the NYPD, outside of the official designation procedure, he promoted to Second Grade male detectives that he had worked with and who had served principally as his chauffeurs. As to two other male detectives he promoted to Second Grade, he authorized their promotion even though he had no knowledge of their careers, their performance, or whether they were even performing detective or investigative work.

c. Brown

Brown was Chief of the Organized Crime Control Bureau ("OCCB") from September 2000 to January 2002. He has been the Chief of Detectives since February 2003. Brown testified that he was unaware of complaints by females and unaware of the Robinson case. He also testified that grade designations were made without following the official procedure.

d. Allee

Allee served as Chief of Detectives from 2000 until February 15, 2003, when he retired. He confirmed that the answers that he gave in his May 19, 2000 deposition in Robinson were accurate with respect to the process for designation. He testified that a UF 49 in support of Second Grade designation was not required prior to Interim Order No. 1 of 2002, that he provided no training to subordinates in the Detective Bureau regarding the 2002 detective grade designation procedures, and that no explanatory materials were provided after the revised procedures were published. As Chief of Detectives, Allee submitted a rank order list of names to the First Deputy Commissioner with no supporting memoranda.

4. Plaintiffs' Circumstances

During the pendency of this action, Hannon, Tierney, and Zayas were promoted to Detective Second Grade on, respectively, May 30, 2002; April 25, 2003; and April 29, 2005.⁴ a. Tierney

4 These promoted Plaintiffs allege that they should and would have been promoted to Second Grade earlier but for gender discrimination.

On January 9, 1986, Tierney was appointed to the NYPD. She completed training and the course of study at the Police Academy, underwent field training in a Neighborhood Stabilization Unit ("NSU"), and then served in the 52nd Precinct in the Street Narcotics Enforcement Unit and the Precinct Anti-Crime Unit. In September 1992, Tierney was assigned to the OCCB, Manhattan South Vice Squad. Since 1992, Tierney has been rated "extremely competent" ("EC"), the highest rating, and she has been awarded eight excellent police duty medals and two meritorious police duty medals. Tierney was assigned to Bronx Vice Enforcement Squad in February 1993 and was designated Detective Third Grade in March 1995.

By written recommendations pursuant to NYPD Order No. 51, Tierney's commanding officer at the Bronx Vice Enforcement Squad recommended her for promotion to Detective Second Grade to the commanding officer of the Vice Enforcement Division ("Vice") on February 21, 1997; October 14, 1998; and March 19, 2002. The March 19, 2002, recommendation was forwarded to the Chief of OCCB, who forwarded this recommendation to the Police Commissioner on August 8, 2002. Tierney was informed that she was the number one person on the Vice list, but was removed by the Vice commanding officer.

A number of male detectives were promoted to Second Grade ahead of Tierney. First, in making his recommendations to the Police Commissioner on August 8, 2002, the Chief of OCCB ranked Detective Grzegorski higher in priority than Tierney. Grzegorski was appointed to the NYPD on January 4, 1984, and had been assigned to Vice on January 28, 1993. Tierney agreed that Grzegorski was a "good worker." According to Tierney, however, he had fewer arrests than she did. Grzegorski was promoted to Second Grade on November 26, 2002. (Workstel Decl. Ex. A.)

Next, Detective Martin had been appointed to the NYPD on January 9, 1986, and had been at his assignment at Vice for approximately three months less than Tierney. He was rated "well above standards" ("WAS"), the highest rating at that time, and had been recommended for promotion to the Police Commissioner in August 2000. He had 494 arrests, whereas Tierney had 767. Martin was promoted on May 25, 2001. (Id.)

Also, Detective Held was appointed to the NYPD after Tierney and had been in his assignment at Vice two months less than Tierney. He was rated EC on his prior three performance evaluations and had been recommended to the Police Commissioner since June 2001. According to Tierney, he had fewer arrests. Held was promoted on July 31, 2002. (Id.)

In addition, Tierney testified that promotions were made based on favoritism and contacts. Specifically, Detectives Clarke, Sullivan, and Dalton were promoted instead of her because they, or someone on their behalf, each had some high-level contact who requested their promotions. She also has alleged that they were designated as a result of gender discrimination.

According to Tierney, Clarke, who was promoted to Second Grade Detective on December 21, 1999, had much less experience in a squad and had not worked on complex cases as had Tierney. No memorandum memorializing reasons for his promotion was prepared nor provided in discovery.

Sullivan, who had never presented a case for a search warrant, had not been assigned responsibility for a major case, and had less squad experience, was promoted to Second Grade on June 29, 2000. No memorandum in compliance with NYPD Order No. 51 was prepared for promotion nor provided in discovery.

According to Tierney, Dalton was less qualified for designation than Tierney because he did not have the major case, search warrant, or arrest experience that Tierney had. No memorandum in compliance with NYPD Order No. 51 was ever prepared for this promotion nor provided in discovery. Dalton was promoted to Detective Second Grade on August 21, 2001. (Id.)

Tierney testified that Detectives Soto and Huthansel were favored by Deputy Inspector Michael Brooks ("Brooks"), her commanding officer. Soto was promoted on June 18, 1998, and Huthansel was promoted on June 24, 1999. (Id.)

Tierney further testified that Brooks told her that you need "juice" to get promoted and that she could get promoted if she "had a hook" or if the Department specifically "needed females" to be promoted, then she might get promoted. (Pls.' Ex. 5 at 73, 74, 96.)

Brooks served as commanding officer of the Vice Enforcement Division of OCCB from May 1998 to March 2004 and testified that he had never seen nor was he even aware of NYPD Order No. 51 prior to preparing for his deposition. Brooks also testified that, in his OCCB experience, a UF 49 with specific reasons for recommendation for Second Grade designation had not been used for promotions, and that he did not have to provide reasons to the commanding officer of OCCB for his selection of candidates or his ranking of them. Brooks testified that he never attended any executive level OCCB meetings where guidance was provided regarding fairness in promotions for females.

With respect to Dalton, Brooks had no recollection of ever seeing a UF 49 for Dalton but thought Dalton was a better "undercover." However, upon further questioning, Brooks conceded that Dalton's primary job assignment was that "he coordinated the books and the cases" and "his primary function was probably administration" and he only "secondarily" served as an undercover. Brooks had no knowledge of any specific case with which Dalton was involved, had no knowledge of any search warrants that Dalton had executed, and had no recollection of any matter in which Dalton had served as an undercover. (Pls.' Ex. 8 at 33, 34, 38-40.)

With respect to Clarke, Brooks testified that he did not know whether Tierney had made more arrests or whether Tierney had more experience in Vice. Brooks conceded that there was no document to his knowledge memorializing the reasons for Clarke's promotion, and that no females were put in for Second Grade by the male supervisor who recommended Clarke for Second Grade.

With respect to Sullivan, Brooks testified that he was an undercover for policy betting and getting into social clubs. Brooks had no recollection of ever seeking a recommendation for Second Grade in the form of a UF 49 for Sullivan, nor of any specific person recommending Sullivan. Brooks had no knowledge of Sullivan's arrest totals.

Brooks testified that he never verified the factual accuracy of verbal recommendations for Second Grade designation and did not know if Tierney had greater arrest totals, greater search warrant productivity, or better case management than the males selected for Second Grade promotion. Brooks further testified that he relied upon the captains for these recommendations, all of whom were males; that to his knowledge no one in OCCB went through the process set forth in NYPD Order No. 51; that Clarke, Dalton, and Sullivan did not go through the process; that as of the date of his deposition on May 17, 2005, he had never seen Interim Order No. 1 of 2002; and that Tierney should have been promoted to Second Grade between 1998-2000 and in 2000 and 2001 when these males were promoted.

Defendant Brown testified that materials in support of the promotions of Sullivan, Clarke, and Dalton akin to a UF 49 and evaluations prepared for Tierney were required under applicable procedures; that promotions to Second Grade were made for OCCB detectives for whom he had not submitted the required recommendations; and that there were no female supervisors in Bronx Vice.

Overall, in comparison to the records of the detectives promoted prior to her, Tierney had received WAS performance ratings (EC evaluations) since 1992; she had more time in rank as a detective and more squad experience than any of the detectives referred to; and her recommendations for Second Grade promotion dated back to 1997, whereas the recommendations for Grzegorski, Martin, and Held dated from 2000, 2001, and 2002 respectively.⁵ b. Chiclana

5 There were no written recommendations for the promotions of Clarke, Dalton, Sullivan, or Soto produced in discovery.

Chiclana graduated from City College in 1981 with a bachelor's degree in Bilingual Education and was appointed to the NYPD on July 19, 1984. She successfully completed the course of study at the Police Academy, was assigned to NSU 8 for training, and was then assigned to patrol duties in the 28th Precinct in Harlem in July 1985. In 1989, Chiclana was assigned to the Bronx Narcotics District as an investigator. She developed cases, registered confidential informants, executed search warrants, and made numerous arrests. Chiclana was promoted to Detective Third Grade in 1991.

In 1993, Chiclana was assigned to the 34th Precinct Detective Squad which, in 1994, was split into the 33rd and 34th Precincts. In October 1994, Chiclana was assigned to a team of detectives in the 33rd Squad in Washington Heights, Manhattan, which investigated all major crimes.⁶ Chiclana became the Domestic Violence Investigator for the 33rd Squad and served in that capacity from 1999 to 2001.

6 Chiclana testified that homicides in Washington Heights were not as "newsworthy" and may not have been as notable to the NYPD. (Pls.' Ex. 11 at 126-127.)

Chiclana was assigned to the 33rd Detective Squad on October 3 or 4, 1994, where she remained until she retired in 2004. She was the only female assigned to the 33rd Detective Squad. Chiclana served in a predominantly Spanish-speaking area and was often asked to translate for non-Spanish speaking detectives in the 33rd Precinct and in other squads. She maintained a good record in case management and would often be assigned the cases of retired or transferred detectives.

Chiclana was consistently rated "highly competent" on her annual performance evaluations and was recommended for Second Grade on December 3 and 16, 1998; February 26, 1999; and March 17, 1999. Chiclana was recommended for promotion by her commanding officer at the 33rd Detective Squad on February 26, 1999, together with Detectives Fox and Primus. The commanding officer of Manhattan North Detective Operations, in turn, forwarded the recommendation of Chiclana and Fox to the commanding officer of Detective Borough Manhattan on March 17, 1999. The commanding officer of Detective Borough Manhattan forwarded only the name of Fox to the Chief of Detectives for consideration on September 9, 1999. Fox was not promoted. (Workstel Decl. Ex. A.)

Chief of Manhattan North Detectives, Joseph Reznick ("Reznick"), testified that he was aware of the prior recommendations for Chiclana's promotion to Second Grade and supported them. Reznick further testified that Chiclana's work ethic was proper, that she had high arrest activity, that she had a handle on things, that he did not recall anything negative about her sick record or discipline, and that he put her name forward for Second Grade designation.

Chief John W. Cutter ("Cutter"), who succeeded Reznick as commanding officer of Manhattan North Detective Operations, testified that Chiclana had good arrest activity and case management skills, that she had a good reputation as a detective, that she met the criteria for Second Grade, and that he had recommended her for Second Grade. He testified that he spoke to Chief Taylor about the recommendation for Chiclana, that Chief Taylor agreed with Cutter's assessment of Chiclana, and that her name was on the list submitted to the Chief of Detectives. Cutter also testified that under Kerik, detectives were promoted outside the departmental procedure.

Chiclana's name did not appear on any of the lists of recommendations for promotion submitted by the commanding officer of Detective Borough Manhattan to the Chief of Detectives in 2001 or 2002.

In contrast, on December 21, 1999, Detective Perez of the 33rd Squad received a designation to Detective Second Grade even though he had not been recommended for grade. Allee testified that he does not recall "getting anything formally" regarding a Second Grade designation for Perez, but recalls "a telephone conversation." Perez's name does not appear on any list of recommendations made in 1999, except for the final list submitted by the Promotions Review Board to the Police Commissioner.

Detectives Salonia, Gilmore, D'Allessandro, Delipizzi, Guglielmo, and Peterman were all promoted in 2001. (Workstel Decl. Ex. A.) Salonia and Gilmore both were colleagues of Chiclana's at the 33rd Detective Squad when they were promoted.

Salonia had served in the 33rd Precinct for five years. Chiclana had more seniority in the NYPD and in the squad, had a college education, spoke a second language, had a better arrest record, and had better case management than Salonia. Salonia was not on the list of recommendations. No documentation in support of his designation for Second Grade has been provided. Cutter testified that he did not recall putting Salonia's name in for Second Grade designation and that there should have been a UF 49 for such a designation.

On November 20, 2001, Gilmore received Second Grade designation even though he was not recommended for Second Grade under the applicable procedure. No memorandum in support of Gilmore in compliance with NYPD Order No. 51 was provided in discovery in this action.

Regarding the promotion of Gilmore, Deputy Inspector Warren Curry ("Curry") testified that Gilmore was not more deserving of Second Grade designation than Chiclana, and that there should have been a UF 49 for Gilmore as per the Interim Order.

Detectives Dellipizzi, D'Allesandro, and Guglielmo were serving in the 34th Squad, which had previously been part of the 33rd Squad. No documentation for the promotions of Dellipizzi or D'Allesandro under NYPD Order No. 51 was furnished in this action. Cutter testified that regarding Dellipizzi, there was nothing in his record to make him more deserving than Chiclana, and that there should have been a supportive memorandum.

As to the promotion of Guglielmo, there are no reasons consistent with NYPD Order No. 51 outlined in the memorandum in support of his promotion. Reznick testified that he did not know how Guglielmo was promoted, and in any event, Chiclana was more qualified.

Detective Peterman had been a member of the NYPD for seven years and received Detective Second Grade designation on November 20, 2001. No documentation in support of his designation under NYPD Order No. 51 was prepared and none was furnished in discovery in this action.

Chiclana has alleged that she is more qualified for Second Grade designation than all of these male detectives and should have been promoted in 1999 when Perez was promoted or in 2001 when the other detectives were promoted. Chiclana further alleges that it was because of gender bias that she did not receive Second Grade designation.

Chiclana was again recommended for Second Grade on January 22, 2001; October 29, 2002; and January 22, 2004.

Detective Hernandez was promoted on April 30, 2004. Chiclana had more time in the NYPD and in an investigative squad, with greater arrest totals, and had been recommended for grade many years prior to Hernandez. Chiclana has agreed that Hernandez is a good detective. She has also alleged, however, that based upon her overall career, she should have been promoted prior to Hernandez.

Curry testified that he spoke to Chief Fahey regarding Chiclana in 2003, stating that she should be on the list, that he had recommended her, and that Chiclana was going to retire. Curry further testified that he ranked Chiclana ahead of Hernandez for Second Grade designation. Chiclana was told that she was going to be promoted if she did not retire in 2004. However, since Chiclana had been told numerous times that she was going to be promoted and had not been promoted, she proceeded to take her vacation time and terminal leave and put in her retirement papers after twenty years of service.

Reznick testified that he was unaware of any requirement that to receive Second Grade designation, a detective must say he or she is not retiring. He also testified that he knew of detectives who were about to retire and received grade designation. Kerik testified that being in your last year would not be an impediment to receiving grade designation. Curry testified that he knew of no instance where a detective's retirement was an impediment to promotion.

Chiclana has contended that the denial of her promotion to Second Grade was gender-based discrimination. Chiclana alleges that she should have been promoted to Second Grade in 1999 and that had she been, like Detective Garcia whose time and experience is comparable,⁷ Chiclana would have been a First Grade Detective, like Garcia.

7 Garcia was promoted to Detective Second Grade on June 18, 1998. (Workstel Decl. Ex. A.)

c. Kuerner

Kuerner was appointed to the NYPD on February 3, 1984. She completed Police Academy training and was assigned to the 90th Precinct, NSU 15 for training. Kuerner was then assigned to Midtown South Precinct on patrol. In December 1985, Kuerner was transferred to the OCCB and assigned to the Narcotics Division as an undercover officer in Brooklyn North and Queens where she participated in street level narcotics buys as well as long-term, major narcotics investigations. In 1987, Kuerner was awarded a "Meritorious" commendation for outstanding undercover work. In August 1988, she was recognized for integrity in the performance of her undercover narcotics duties by the Integrity Review Board.

On September 27, 1988, Kuerner was designated Detective Third Grade after completion of thirty-six months as an undercover. In 1991, Kuerner was transferred to the Detective Bureau, 102nd Precinct Detective Squad, where she investigated homicides, robberies, sex crimes, assaults, and was, on occasion, the number one in arrests for Detective Borough Queens. In 1993, Kuerner, who was the only female in the squad, was designated the Domestic Violence Detective for the 102nd Squad.

In September 1995, the Chief of Queens Detective Borough transferred Kuerner to the Pattern Identification Module/Queens South ("PIM") to collect and analyze crime data for crime pattern analysis, police personnel deployment, development of effective tactics, and follow-up assessment for detective squads, borough commanders, and the patrol bureau. In PIM, Kuerner was responsible for tracking shootings, homicides, sex crimes, and robberies, and attended COMPSTAT and crime strategy meetings for robbery-related crime patterns at the Chief of Detectives Office. Kuerner also briefed the Queens South Chief on all new strategies and crime data intelligence.

On November 7, 1997, Charles Mattes, Chief of the Patrol Borough of Queens South, submitted Kuerner's name for Second Grade designation. The recommendation was endorsed on November 14, 1997, by the Queens Chief of Detectives, who forwarded that recommendation to the Chief of Detectives.

Kuerner testified that placement on this list meant eventual promotion unless an officer's name was removed for cause. However, over the years, interviews were no longer conducted. Even though on the list, Kuerner was not interviewed and was not promoted to Second Grade.

In 1998, Kuerner was transferred to the Ballistics Unit, where she was first assigned to the Evidence Control Section and then later as a Firearms Examiner in the Firearms Analysis Section. Whether this assignment was investigative or administrative is at issue. She was declared an expert witness in Firearms Identification and Operability in Brooklyn, Queens, and Manhattan Criminal Courts, Family Court, and Grand Jury Proceedings.

Kuerner received 4.5, 4.0 highly competent evaluations, but was not recommended for Detective Second Grade while at the Forensic Investigation Division. Two male detectives, Boncimino and Ketels, were recommended for Second Grade designation.

Ketels had never served as an evidence intake officer, served very briefly as a firearms examiner, and did not testify in court with respect to ballistics.

A UF 49 in support of a Second Grade designation for Boncimino was not prepared and none was requested. Boncimino was recommended for promotion to Detective Second Grade by the commanding officer of the Forensic Investigations Division at least as early as July 28, 1998. He was recommended again on August 15, 2000; May 30, 2001; August 6, 2002; and October 28, 2002.

Although Ketels was not promoted, Boncimino was promoted in 2003. According to Kuerner, these male detectives were less qualified and performed solely computer tasks and not investigative duties.

Gary Gomula ("Gomula"), Kuerner's former supervisor in the Firearms Analysis Section, testified that he was aware that Kuerner had been recommended for Second Grade but that he did not know of the procedure for detective designation at the time. Kuerner was kept in Evidence Intake for almost two years because of an inspection of the Forensic Division, including evidence intake procedures, of which Kuerner was a part.

Gomula further testified that during the time he served in the Firearms Analysis Section, there were no female superior officers either there or in the Forensic Division. He also testified that from 1995 to 2000, the male sergeant of the Firearms Section submitted recommendations for Second Grade designation without reasons for the recommendations, and that all of the recommendations were for male detectives.

From 1995 to 2003, no females were promoted from the unit in which Kuerner served and no instructions were ever provided by Gomula to sergeants or lieutenants regarding the inclusion of female candidates for grade designations. Kuerner has alleged that based on the merits of her career and recommendations, she should have been promoted, but that males were promoted instead. Kuerner has further alleged that the reason for this was her gender.

d. Hannon

Hannon was appointed to the NYPD on January 21, 1985. She successfully completed the course of study and training at the Police Academy and was assigned to NSU 9, Bronx, for field training. In January 1986, Hannon was assigned to the 46th Precinct, Bronx, as a Patrol Officer.

From June 1987 through January 1989, Hannon was assigned to the Bronx Special Anti-Crack Unit, Narcotics Division, as an undercover officer. She was then assigned to the Bronx Tactical Narcotics Unit, Narcotics Division, as an undercover officer from January 1989 through November 1992. Hannon was promoted to Detective Third Grade in December 1989.

In November 1992, Hannon was assigned to the 45th Precinct, Detective Squad, Bronx, as an investigator. She was the first female to be assigned to the 45th Squad.

Hannon received excellent annual performance evaluations, had good arrest activity, and became the Domestic Violence Officer of the 45th Squad. She received Departmental recognition, an Excellent Police Duty Award, a Meritorious Police Duty Award, an Exceptional Merit Award, the "Cop of the Month" Award, and the Bronx Women against Rape Award.

Hannon had a good disciplinary record in the NYPD with no charges and specifications. Since 1997, Hannon had been submitted for designation for Second Grade five times by commanding officers of the 45th Squad.

On December 23, 1998, Hannon was recommended for promotion by the commanding officer of the 45th Detective Squad to the commanding officer of Detective Borough Bronx, together with Detective McLiverty. The commanding officer of Borough Bronx did not forward either of these recommendations on his subsequent list to the Chief of Detectives on April 20, 1999 or August 25, 1999.

Detective McDcnogh was promoted to Detective Second Grade in June 1999. He had been at the 45th Detective Squad since 1990 and, according to Hannon, was deserving of receiving a promotion before her. McDonogh had been recommended by the commanding officer of the 45th Detective Squad to the Chief of Detectives at least five times in 1998.

On January 12, 2001, Hannon was again recommended for promotion by the commanding officer of Borough Bronx to the Chief of Detectives, together with Detectives McLiverty and Waring. None of these recommendations were forwarded by the Chief of Detectives to the First Deputy Commissioner.

On March 23, 2001, Detective Wansley was promoted from the 45th Squad. He had been assigned to the 45th Squad in the summer of 2000, and was not recommended for Second Grade designation under the applicable procedure. Reznick testified that "his name does not appear on any of my submissions" (Pls.' Statement of Material Facts ¶ 133), that his name was not submitted to Reznick by any captains, and that Reznick had no knowledge of how Wansley's name was submitted for a Second Grade designation from the 45th Squad over Hannon.

Kennedy testified that if Wansley's name had been submitted for a grade designation through the process, his name would have appeared on one of the promotion lists.

Allee testified that Wansley's name was not on any Chief of Detectives' list for Second Grade designations submitted by him; that Wansley did not stand out in his recollection for any special case or extraordinary action; and that if Wansley's name came from the Integrity Board, the recommendation would have been in writing. Allee acknowledged that promotions occurred outside the recommendation process. No memorandum in compliance with NYPD Order No. 51 was provided in discovery in this action with respect to Wansley's promotion.

On September 1, 2001, Hannon was again recommended for promotion by the commanding officer of the 45th Detective Squad to the commanding officer of Borough Bronx, together with Detectives McLiverty, Waring, Farino, and Francese. Of these five detectives, only Hannon's name was forwarded for consideration to the Chief of Detectives, who determined not to recommend her promotion to the First Deputy Commissioner.

On May 30, 2002, Hannon was promoted to Detective Second Grade. Hannon testified that she brought this lawsuit because "I feel that male detectives have been promoted to grade who have less time on the job, less time in rank, do less work than I." (Pls.' Ex. 21 at 36:11-13.) She has asserted that she was denied promotion earlier because of gender discrimination and would not have been promoted if she had not joined in this action. Hannon also testified as to her belief that promotions were made based on contacts and favoritism and that she was not promoted because she does not have any relatives working at the NYPD.

Other females assigned to the 45th Squad after Hannon have not received Second Grade promotions while male detectives have continued to receive Second Grade promotions in the 45th Squad.

e. Rohan

Rohan was appointed to the NYPD on January 21, 1984. She successfully completed the Police Academy and was assigned for field training to the NSU-1. In January 1985, she was assigned to the 30th Precinct to perform patrol duty. In April 1988, Rohan was assigned to OCCB, the Manhattan North Narcotics Division, where she executed search warrants and made arrests. Rohan was designated Detective Third Grade in October 1990.

In 1993, Rohan was assigned to a Robbery Investigation Unit in the 19th Precinct, where she was assigned to a clerical position by the commanding officer. In December 1994, she became pregnant with twins and continued with her clerical duties. Rohan was on a maternity leave of absence without pay from October 1995 to August 1997. Upon her return, she was reassigned to the 19th Precinct Squad.

In March 1998, the 19th Squad Commander asked Rohan to take a clerical position because he needed someone for Case Assignment. Although her primary duties were administrative in nature, Rohan continued to investigate cases and make arrests. She assisted case officers with interrogations, often translating Spanish into English for male detectives. She has estimated that half of her job involved investigative work.

In November 2000, Rohan was transferred to the 5th Squad, Chinatown, and worked on a caseload of 100 cases in eight months. In July 2001, Rohan was transferred to the 42nd Squad in the South Bronx, where she remained until retiring. Rohan had about 300 cases (the average per detective was 150-200), and was also assigned to investigate domestic violence crimes. Rohan made 588 arrests during her career.

Reznick testified that Rohan had high arrest activity and was a competent detective, that he had no recollection of receiving any documentation in support of Second Grade recommendations from the 42nd Squad, and that recommendations for the male detectives Williams, Brusack, and Aguilar from that Squad may just have been "called in."

Rohan further testified that male detectives with less experience and less qualifications have been promoted to Detective Second Grade because of gender discrimination. She further testified that just before his retirement, Kerik made promotions of detectives with much less experience than Rohan.

Rohan also contends that she was not promoted because she "wasn't good friends with the bosses." Specifically, she testified that Detective Slender received his promotion because he was friendly with Lieutenant Castellano. Slender was promoted on December 21, 1999, while he worked with Rohan at the 19th Detective Squad. Rohan was never recommended for promotion to Detective Second Grade.

f. Roman

Roman was appointed to the NYPD on January 3, 1983. She completed the course of study and training at the Police Academy in June 1983 and was assigned for field training for six months. From January 1984 through January 1989, Roman was assigned to the 42nd Precinct as a patrol officer. Roman was then assigned to the OCCB, Narcotics Division, from January 1989 to June 1994. She was promoted to Detective Third Grade in January 1991.

From January 1994 through January 1997, Roman was assigned to the Bronx Warrant Squad.⁸ She was then assigned to the Bronx Special Victims Squad from January 1997 through November 1999, where she specialized in cases dealing with children under the age of eleven. In November 1999, Roman was assigned to the Bronx Robbery Squad.

8 There appears to be a discrepancy in the statements regarding Roman's assignment between January 1994 and June 1994.

From November 1999 to January 2001, Roman was placed on modified assignment due to an investigation stemming from an allegation that she engaged in domestic violence. During this period, she was not eligible to receive promotion.

According to Roman, she was the only female detective in her command in a position to be recommended for promotion. The other females in her command performed only administrative functions which, according to Roman, did not qualify them to receive promotion. Roman testified that promotions to Detective Second Grade are made outside the process required by Interim Order No. 1, are made based on phone calls, and that detectives assigned to the Bronx Special Victims Squad were recommended for promotion because they were favored by Lieutenant Sindone, including Detectives Hourihan and Riordan. Hourihan was promoted on June 24, 1999 and Riordan was promoted on December 21, 1999.

On October 31, 2002, Sergeant Hourihan (Detective Hourihan's brother) recommended Detectives Neice, Houlihan and O'Brien for promotion to Detective Second Grade because he learned from speaking with others that all three had previously been recommended for grade designation. Houlihan was promoted on December 20, 2002, and Niece was promoted on October 3, 2003.

Roman has alleged that she should have been promoted in 1999, that she has been denied fair and equal merits-based consideration, and that she has been unfairly denied designation to Second Grade Detective based on gender bias.

g. Zayas

Zayas was appointed to the NYPD on July 8, 1985. She completed the course of training at the Police Academy and was thereafter assigned to NSU 5 for field training. She was next assigned to patrol duties in the 46th Precinct. From January 1989 to June 1994, Zayas was assigned to the OCCB, Narcotics Division, where she served as an undercover officer. Thereafter, she served as an investigator with a team of detectives assigned to street-level drug interdiction. She was promoted to Detective Third Grade in December 1989.

From 1989 to 1993, Zayas was assigned to Bronx Major Case Unit Narcotics. She received a Unit Citation in 1992 for work performed in the Major Case Unit.

In 1993, Zayas was assigned to the 47th Precinct Robbery Apprehension Module ("RAM"), where she received community awards, including the Detective Crime Clinic Award. In September 2000, Zayas was assigned to the 52nd Squad Robbery Unit and then to the Detective Squad. Until 2004, she was the only female officer there.

Detectives Calvanico, Caceras, Whitter, Sulla, Golina, Truglia, and Caristo had no undercover experience and less case investigation experience than Zayas, yet were all recommended for Second Grade designation. Caceras, Whitter, Golina, and Truglia were promoted to Detective Second Grade. (Workstel Decl. Ex. A.)

Reznick testified that given the factors relevant for consideration for grade designation, Zayas should have been put in for Second Grade designation. He further testified that Zayas was well qualified for Second Grade designation and that he had no knowledge of any factor that made any of the male detectives who had been submitted for Second Grade designation more qualified than Zayas. Specifically, he knew of nothing in the records of Detectives Golina or Truglia that distinguished them for Second Grade designation over Zayas, even though he endorsed their recommendations for Second Grade designation.

Brown testified that he did nothing to determine why a twenty-year detective who was number twelve on the promotion list was first recommended in her twentieth year of service. He also testified that he generally accepted what the Borough Commander sent to him in terms of recommendations for grade designations.

Lieutenant Donald Henne ("Henne"), who served as the commanding officer of the 52nd Squad from May 2002 to February 2004, testified that he had never seen NYPD Order No. 51 until the City's lawyer showed it to him in preparation for his deposition, nor had he seen Interim Order No. 1 until he met with his counsel for his deposition. He further testified that the practice had been to simply submit names without any supporting UF 49. When he was the commanding officer of the 52nd Precinct, the Detective Borough Bronx never required a memorandum in support of recommendations.

On October 23, 2003, Henne submitted the names of three male detectives, Golina, Truglia, and Caristo, for Second Grade designation for which he never provided, nor was he required by his superiors to provide, a recommendation in conformance with departmental criteria. He had never seen any prior recommendations for these detectives. He did not submit a UF 49 for any female detective for Second Grade designation and there were no female supervisors in Detective Borough Bronx at that time.

Zayas testified that, in her experience, recommendations and promotions were made based on favoritism and a detective's connections within the NYPD. She further testified that her commanding officer favored the members of the "A" team and, based on this favoritism, recommended them for promotions. Members of the "A" team included Detectives Caristo, Menton, Truglia, Golina and Sulla. Zayas testified that she was a member of the "D" team and that the commanding officer's favoritism "was not fair" to any members of the "D" team. Menton, Sulla and Caristo were not promoted to Detective Second Grade.

Zayas also testified that Detectives Mulroy and Mordechai were promoted based on their contacts within the NYPD and that promotions based on a detective's contacts within the NYPD were unfair to both male and female detectives. Zayas further testified that the reason she believes that she was not promoted was because she was not friendly with her commanding officer.

Zayas was recommended for Second Grade designation in 2004 and was promoted to Second Grade Detective on April 29, 2005. She contends that had she been put in for Second Grade designation earlier as she deserved, based on her record, and been fairly considered, she would have been promoted to Detective Second Grade in or about 1998.

h. Gerena

Gerena has earned two years of college credit at Lehman College and John Jay College and served seventeen years in the Army Reserves, holding the rank of Staff Sergeant. She was appointed to the NYPD on July 25, 1983. After the Police Academy, she was assigned to NSU 8 in the 43rd Precinct, Bronx. Gerena was assigned to the Missing Persons Squad and made Detective Third Grade on January 19, 1989.

In 1992, Gerena was assigned to the 41st Precinct Detective Squad to investigate all major investigations. She remained there until 2002, although she was temporarily assigned to the Intel Division in 1995 where she did bodyguard work in the Executive Protection Unit. Gerena was assigned to the Bronx Special Victims Squad in June 2002, and she retired in 2003. Overall, while at the 41st Squad, Gerena, who is bilingual, maintained a heavy caseload, had excellent arrest activity and clearances, and served on temporary assignments in the Homicide Squad.

Reznick testified that Gerena served as liaison with the Medical Examiners Office and that her forensic expertise was helpful to detectives and squad commanders. He also testified that Gerena had a good reputation as a detective, was fluent in Spanish, and should have been recommended for Second Grade designation.

Gerena was told that she was recommended for designation to Detective Second Grade on numerous occasions by her supervising sergeant. She has contended that male detectives with less qualifications for Second Grade designation were recommended for designation by the male supervising sergeant of the squad.

For example, Detectives Dawson and Miraglia were recommended for Second Grade designation from the 41st Precinct with no explanatory, supportive memorandum. According to Gerena, both of these male detectives had less experience and were less qualified than she. Miraglia and Dawson were not promoted.

Gerena testified as to the importance of friendships and of having a highly-placed contact in the promotions process, which also benefitted female detectives in obtaining promotions. Gerena testified that there are female detectives who were promoted, even though they were not deserving.

Gerena was never recommended for promotion.

Discussion 1. The Summary Judgment Standard

In deciding a motion for summary judgment, a court shall render judgment "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

The moving party has the initial burden of showing that there are no material facts in dispute, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970), and can discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case, Celotex, 477 U.S. at 325. The nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), as to every element "essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion."Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987);Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985). However, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If there is not, summary judgment is proper. Id. at 249-5C.

In a case wherein the plaintiff asserts that the employer's decision was a pretext for discrimination, courts use the well known McDonnell Douglas burden-shifting framework.McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973). First, the plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802-04; Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Weinstock, 224 F.3d at 42. Only if the plaintiff meets this initial burden will the burden then shift to the defendant to produce evidence that the adverse employment action was taken for some legitimate, non-discriminatory reason.Burdine, 450 U.S. at 254-55. If the defendant articulates a legitimate non-discriminatory reason for its action, "the presumption raised by the prima facie case is rebutted, and drops from the case." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Burdine, 450 U.S. at 255 n. 10). Then, the plaintiff has the ultimate burden to demonstrate by a preponderance of the evidence that the articulated reason offered by the defendant for the adverse employment action is merely a pretext for actual discrimination. Mandell v. County of Suffolk, 316 F.3d 368, 380-81 (2d Cir. 2003).

The question for the court on summary judgment is whether the plaintiff's evidence, taken as a whole, establishes a substantial likelihood that the employer intentionally discriminated against the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000); see also Moorehead v. New York City Transit Auth., 385 F. Supp. 2d 248, 253-54 (S.D.N.Y. 2005) (assuming a prima facie case and proceeding directly to the "ultimate issue"); Jalal v. Columbia Univ., 4 F. Supp. 2d 224, 234 (S.D.N.Y. 1998) (declining to "dance mechanistically through the McDonnell Douglas and Price Waterhouse `minuets'" and proceeding directly to the ultimate issue).

Additionally, it is within the court's discretion to resolve pendent state claims on summary judgment, particularly where the court determines that by doing so, the interests of judicial economy are served because the plaintiff's claims under state and city law are analyzed under the same standards as the Title VII claims. See, e.g., Barriera v. Bankers Trust, No. 98 Civ. 3641, 2003 WL 22387099, at *9 (S.D.N.Y. Oct. 20, 2003) (exercising supplemental jurisdiction, dismissing state and city claims along with Title VII claims on summary judgment for reasons of judicial economy given identical analysis).

2. The Motion to Dismiss the Section 1983 Claims Is Granted in Part and Denied in Part

a. The Effect of the Statute of Limitations

In New York, an action under 42 U.S.C. § 1983 must be filed within three years of the date on which plaintiff's cause of action accrued. N.Y.C.P.L.R. § 214(5) (McKinney's 2003);Owens v. Ikure, 488 U.S. 235, 251 (1989); Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002); Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 331-32 (2d Cir. 1997). Pursuant to the discovery rule, a plaintiff's cause of action under § 1983 accrues when the plaintiff knew or should have known about the injury that is the basis for the cause of action. Pearl, 296 F.3d at 80; Jaghory, 131 F.3d at 331. Here, the cause of action accrued when a male detective was promoted to Detective Second Grade over a particular plaintiff.

As Plaintiffs commenced this action on March 28, 2002, any § 1983 claims accruing prior to March 28, 1999, would be time-barred. Detectives Garcia, Hackett, Lockhart, and Soto were all promoted to Detective Second Grade prior to March 28, 1999 (Workstel Decl. Ex. A), and therefore any § 1983 claims resting on their promotions are dismissed. None of the Plaintiffs are completely time-barred, however, from bringing a § 1983 claim.

b. The Motion to Dismiss the § 1983 Claims Against the City is Denied

The question of the failure to comply with the NYPD's detective grade designation procedure and its discriminatory effect on the Plaintiffs' promotions raise issues of fact sufficient to warrant rejection of Defendants' summary judgment motion to dismiss the Plaintiffs' § 1983 claims against the City.

Second Circuit law provides:

In order to hold a municipality liable under § 1983 for the conduct of employees below the policymaking level, a plaintiff "must show that the violation of his constitutional rights resulted from a municipal custom or policy." Ricciuti v. New York City Transit Authority, 941 F.2d 119, 122 (2d Cir. 1991); see Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L. Ed. 2d 611 (1978); City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993).

Thus, a municipality may be liable under 42 U.S.C. § 1983 if there is: (1) an official policy, custom or practice; (2) the policy, custom or practice "caused," or was the "moving force," behind the plaintiff's alleged injuries; and (3) the injuries amounted to a violation of plaintiffs' constitutional rights.Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 690-94 (1978); McAllister v. New York City Police Dep't, 49 F. Supp. 2d 688, 703-04 (S.D.N.Y. 1999). Although Defendants have contested the Plaintiffs' establishment of either the first or second elements of a Monell claim, Defendants' arguments are unavailing. i. A Municipal Policy Has Sufficiently Been Established to Survive Summary Judgment

A municipal policy may consist of either acts or omissions on the part of a city. City of Canton, Ohio v. Harris, 489 U.S. 378, 394-95 (1989) (O'Connor, J., concurring in part dissenting in part) ("the `policy of inaction' is the functional equivalent of a decision by the city itself to violate the Constitution"). In the absence of other evidence, however, municipal liability must not be predicated on "mere proof of a single incident of errant behavior. . . ." Sarus v. Rotundo, 831 F.2d 397, 403 (2d Cir. 1987); accord Dwares, 985 F.2d at 100; Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S. 916 (1987).

A plaintiff may establish a municipal custom or policy by showing that the municipality was alerted to the possible violation of constitutional rights and exhibited deliberate indifference to it. Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1987). To prove such deliberate indifference, plaintiffs must show that the need for better monitoring to prevent such constitutional violations was obvious. This, in turn, can be shown by complaints of civil rights violations which are followed by no meaningful attempt on the part of the municipality to investigate or to take steps to foreclose their recurrence. Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122-23 (2d Cir. 1991). A plaintiff's evidence must establish that a policy-making official had notice of a potentially serious problem of unconstitutional conduct such that the need for corrective action or supervision was clear. This may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or forestall further incidents. Vann v. City of New York, 72 F.3d 1040, 1050-51 (2d Cir. 1995). The inference that such a policy exists may arise from "circumstantial proof" that the municipality so failed to enforce its stated, official policy as to display a deliberate indifference to constitutional rights.Dwares, 985 F.2d at 100.

Here, based on the above facts, the existence of a municipal policy of ignoring the NYPD detective grade designation procedure has sufficiently been established to withstand Defendants' summary judgment motion.

Specifically, in 1999, female officers filed the Robinson complaint, alleging that the process for detective designation discriminated against them on the basis of gender and that males who were unqualified or less qualified than plaintiffs were being awarded the designations that plaintiffs should have received.Robinson v. City of New York, 99 Civ. 505 (RWS). The complaint inRobinson alleged that the failure to utilize written, standardized criteria and a uniform process for detective grade designation had resulted in the gender-based denial of such designations for the female plaintiffs. DuringRobinson, NYPD Order No. 51 was produced, which set forth criteria for designation and a process including a written recommendation for Second and First Grade Detective designation followed by an interview before a Board.

Allee, a defendant in Robinson and in this action, testified that the procedure for detective grade designation had not been followed, was not being followed, and had not been revoked. Specifically, Allee testified in his Robinson deposition that the supporting documentation required for grade recommendations was not being provided and that interview panels were not being conducted. Allee further testified in his Robinson depositions that he had read the complaint in Robinson, he was aware of the plaintiffs' claims of gender-based denial of grade designations, but his own criteria for recommending detectives for grade promotion consisted of "just pick the best people," and he relied solely upon the word of the Borough Commanders, who were males.

Allee testified by deposition in this action that in relation to the Robinson litigation, he took no steps to effect compliance with the detective grade designation procedure. He further testified to personally participating in the recommendation of Detective Perez, based solely upon a phone call and entirely outside the official procedure. No memorandum recommending Perez and demonstrating how he met the applicable designation criteria was ever prepared or produced in discovery in this action.

Kerik, another defendant in this action and Police Commissioner from August 21, 2000, to December 31, 2001, testified that he was aware of NYPD Order No. 51 and of the problems raised inRobinson, but never addressed them and did not implement any policy to scrutinize the absence of recommendations for females. Further, he testified that he was aware of the Robinson settlement, including the stipulation for uniform standards and written recommendations. He admitted to personally making promotions in 2001, just before his retirement, of male detectives of whom he had no knowledge of whether they performed detective duties, as well as promoting his male chauffeurs to Detective Second Grade.

Reznick, who served in 1997 as the commanding officer of Manhattan North Detective Bureau and thereafter as the Detective Chief of the Bronx until 2003, testified that he had never seen or utilized NYPD Order No. 51. Similarly, Brooks, commanding officer of the Vice Division, testified that he had never seen or utilized NYPD Order No. 51 in OCCB and did not require written substantiation for recommendations, but rather only required that a list of names be submitted. Lieutenant Gomula testified that similar, non-compliant practices had been followed in the Forensic Investigations Division.

Defendants' conduct with respect to the official designation procedure as just described, knowing of its nexus to the deprivation of Plaintiffs' constitutional rights to be free of gender discrimination, may be found to be a municipal policy. See Dwares, 985 F.2d at 100; Ricciuti, 941 F.2d at 123. Furthermore, Plaintiffs have established that the facts available put policy-makers on actual and/or constructive notice that a particular omission — failure to comply with the official detective grade designation procedures — was substantially certain to result in the violation of constitutional rights, thereby satisfying the dictates of Monell. See City of Canton, 109 U.S. at 390; Fiacco, 783 F.2d at 326. Since a municipality is responsible for controlling its personnel, facilitating illegal action by failing to enforce a procedure designed to effect merit-based promotions could constitute a municipal violation of § 1983. See Fiacco, 783 F.2d at 327.⁹ ii. Whether the Municipal Policy Was the Cause of Plaintiffs' Alleged Injuries Remains a Factual Issue

9 Defendants argue that "absent some special effort, each successively high level in the hierarchy was unaware of the names of individuals who were recommended to the lower levels" and because of this, the Chief of Detectives did not know that recommendations for females were not being submitted. Certain of the deposition testimony indicates otherwise, however. For example, Allee was on notice that the Plaintiffs in this case and in Robinson complained that they, and not specified males, should have been recommended for grade and promoted.

The facts set forth above establish a conflict as to whether the failure to enforce the official procedure for detective grade designations was the cause of Plaintiffs' injuries. If the Plaintiffs establish that there was a municipal practice or policy and that the practice or policy and Plaintiffs' gender, rather than the proper application of the standardized criteria and set procedure for detective grade designations, was the legal cause of Plaintiffs' constitutional injury, a § 1983 violation results. McAllister, 49 F. Supp. 2d at 704.

Overall, women were excluded from the rank of police officer in the NYPD until 1973. Acha v. Beame, 531 F.2d 648, 650 (2d Cir. 1978). The history of exclusion of women from the position of police officer, their minority status in the NYPD and in the Detective Bureau, the allegations and resolution in Robinson, and the factual issue of compliance with the NYPD's detective grade designation procedure and its effect on promotions all raise issues of fact sufficient to warrant rejection of Defendants' summary judgment motion to dismiss the § 1983 claims against the City. c. The Motion to Dismiss the § 1983 Claims Against the Individual Defendants Is Granted in Part and Denied in Part

Personal involvement of the individual Defendants in the alleged constitutional deprivations is a prerequisite to an award of damages against them under § 1983.¹⁰ Doyle v. Coombe, 159 F.3d 1346, *1 (2d Cir. 1998) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087 (1978));Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Brown v. Coughlin, 758 F. Supp. 876, 888 (S.D.N.Y. 1991). The personal involvement of a defendant in a § 1983 violation may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation, failed to remedy the wrong, (3) the defendant created the policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of the affected party by failing to act on information indicating that constitutional violations were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). The deliberate indifference standard implies a knowledge that constitutional violations were occurring or likely to occur. The fact that the named defendant occupies a high position of authority within the agency hierarchy is insufficient to sustain the claim based on the deliberate indifference prong of Colon. 58 F.3d at 873-74.

10 The Plaintiffs have withdrawn their § 1983 claims against Defendants Lawrence, Kelleher, and Dunne. (Pls.' Br. in Opp'n 15, n. 6.)

Here, the Plaintiffs have alleged that Allee was personally involved in the violation of the Plaintiffs' right to be free of gender discrimination in employment by: (1) personally making a recommendation for Second Grade designation for a male detective outside of the official designation procedure; (2) failing to take steps to effect compliance with the official procedure after being put on notice of the attendant deprivation of female detectives' constitutional rights; and (3) failing to adequately supervise subordinates and compel their compliance with the official designation procedure. On this showing, there is at least a question of fact sufficient to warrant a jury trial on Allee's personal involvement in the alleged § 1983 violations.

Similarly, Plaintiffs have alleged that the actions of Kerik meet the legal standard for personal involvement under Colon in that he: (1) promoted individuals outside the official procedure; and (2) took no steps to enforce compliance with the official designation procedure, after being put on notice of the attendant constitutional deprivations.¹¹ Again, on this showing, there is at least a question of fact sufficient to warrant a jury trial regarding Kerik's personal involvement in the alleged § 1983 violations.

11 Grade designations can only occur if the Police Commissioner orders a designation.

As to Brown, Plaintiffs allege that: (1) he was aware that promotions were made of detectives in OCCB without any UF 49 and for which he knew of no recommendation; (2) after having been served with the Complaint in this action, he took no steps to determine whether female detectives were being excluded from the detective designation procedure; and (3) he only required names, but no substantiation, for designation recommendations. Therefore, based on this showing, Brown also sufficiently meets the standard for personal involvement to defeat summary judgment.

Additionally, several of the individual Defendants may be liable for their personal involvement in the alleged § 1983 violations by having directly participated in the failure to promote one of the Plaintiffs, thereby satisfying the first prong of Colon. 58 F.3d at 873. As established by the facts here, recommendations for promotion to Detective Second Grade were initiated at the command at which the detective was assigned and forwarded to the commanding officer of the next higher level. Each higher level commanding officer would review the names and forward to the next level a smaller number of names for consideration until a final list of names was presented to the Police Commissioner.

Tierney was recommended for promotion by her commanding officer at the Bronx Vice Enforcement Squad to the commanding officer of the Vice Enforcement Division on October 14, 1998 and again on March 19, 2002. The 1998 recommendation never advanced through the process sufficiently far to be considered by any of the named defendants Kelly, Kerik, Safir, Allee, Taylor and Brown. The March 19, 2002 recommendation, however, was forwarded to the Chief of OCCB, who forwarded it for consideration on August 8, 2002. As the Police Commissioner did not promote Tierney at that time, a claim based on this list is actionable against Kelly if gender discrimination can be established.

Chiclana complains that as the result of gender discrimination, she was not promoted in favor of Detectives Solonia, Gilmore, D'Allessandro, Delipizzi, Guglielmo, and Peterman, who were all promoted in 2001, and Rivera, who was promoted in 2002. Chiclana similarly complains that she was discriminated against when her commanding officer at the 33rd Detective Squad recommended Detective Hernandez for promotion rather than her on November 1, 2002. Chiclana, however, did not name as defendants either the commanding officer of the 33rd Detective Squad or the commanding officer of Detective Borough Manhattan. Since the named Defendants played no role in the decision not to promote Chiclana in 2001 or 2002, any § 1983 claims asserted against them by Chiclana based on the failure to promote her in 2001 and 2002 cannot withstand summary judgment.

Chiclana was recommended for promotion together with Detectives Fox and Primus by her commanding officer at the 33rd Detective Squad on February 26, 1999. The commanding officer of Manhattan North Detective Operations, in turn, forwarded the recommendation of Chiclana and Fox to Taylor, then commanding officer of Detective Borough Manhattan, on March 17, 1999. As Chiclana has named Taylor as a defendant in this action, her § 1983 claim arising from Taylor's failure to forward her name to the Chief of Detectives for consideration is actionable if it occurred after March 28, 1999, and gender discrimination can be established.

Similarly, on January 19, 2004, the commanding officer of Detective Borough Manhattan recommended Chiclana for promotion to Brown who did not forward this recommendation to the First Deputy Commissioner. As Brown is named as a defendant here, this claim is actionable if gender discrimination can be established.

Other than a recommendation received in 1997 (claims concerning which are time-barred), Kuerner was not recommended for promotion by her commanding officer. Thus, none of the named Defendants had any personal involvement in the actions giving rise to her § 1983 claims.

Hannon was recommended for promotion by the commanding officer of the 45th Detective Squad to the commanding officer of Detective Borough Bronx on December 23, 1998, together with Detective McLiverty. The commanding officer of Detective Borough Bronx did not forward either of these recommendations on his subsequent list to the Chief of Detectives on April 20, 1999 or August 25, 1999. Thus, none of the named defendants had any personal involvement in the actions giving rise to her § 1983 claims based on the December 23, 1998 recommendation.

On January 12, 2001, Hannon was again recommended for promotion by the commanding officer of Detectives Borough Bronx to the Chief of Detectives, together with Detectives McLiverty and Waring. None of these recommendations was forwarded by the Chief of Detectives to the First Deputy Commissioner. On September 1, 2001, Hannon was again recommended by the commanding officer of the 45th Detective Squad to the commanding officer of Detectives Borough Bronx, together with McLiverty, Waring, Farino and Francese. Of these five detectives, only Hannon's name was forwarded for consideration to the Chief of Detectives, who again determined not to recommend her promotion to the First Deputy Commissioner.

Therefore, Hannon's claims based on the January 12 and September 1, 2001 recommendations are actionable with respect to Defendant Allee if it is established that Hannon's failure to be promoted was the result of purposeful gender discrimination.

Neither Rohan, Roman, nor Gerena was ever recommended for promotion by their respective commanding officers. Thus, none of the named Defendants had any personal involvement in the actions giving rise to their § 1983 claims, as they never had the opportunity to consider these Plaintiffs.

Zayas was not recommended for promotion until December 15, 2004. There can be no § 1983 claim raised with respect to this recommendation, however, because it was forwarded through channels and resulted in Zayas' promotion on April 29, 2005. Additionally, as she was never recommended by her commanding officer prior to December 15, 2004, none of the individual Defendants had any personal involvement in Zayas' failure to be promoted prior to that date.

Although Plaintiffs have dismissed their claims as against Defendants Lawrence, Kelleher and Dunne (Pls.' Br. in Opp'n 15, n. 6), they have not demonstrated any personal involvement by Defendant Safir, thereby warranting dismissal of the claims against Safir as well.

3. The Motion To Dismiss The Title VII Claims is Granted in Part and Denied in Part

a. The Effect of the Statute of Limitations

To pursue a Title VII claim in federal court, a plaintiff must first file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). See, e.g., Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). In New York, a plaintiff must file a charge of discrimination with the state or local equivalent of the EEOC within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1); see also Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Butts, 990 F.2d at 1401.

Here, each plaintiff filed a charge of discrimination with the EEOC on March 6, 2002, except Gerena, who filed on or after March 26, 2002. Thus, for most Plaintiffs, claims arising on or after May 10, 2001, i.e., 300 days before March 6, 2002, are actionable under Title VII. Under the circumstances of this case, this effective statute of limitations begins to run on the date of the decision to promote a male detective over the female Plaintiff.

Detectives Clarke, Garcia, Hackett, Hourihan, Huthansel, Lockhart, Perez, Riordan, Slender, Soto, Sullivan, and Wansley all were promoted to Detective Second Grade prior to May 10, 2001. (Workstel Decl. Ex. A.) Therefore, Plaintiffs' Title VII claims based on the promotion of any of these male detectives are accordingly dismissed as time-barred.

Causes of action for gender discrimination under the New York Executive Law (Human Rights Law), however, are governed by a three-year statute of limitations, which is measured from the filing of the action in the federal court. See Quinn, 159 F.3d at 765; Van Zant, 30 F.3d at 714. Claims of gender discrimination under the New York State Executive law post-dating March 28, 1999, therefore survive. Coffey v. Cushman Wakefield, Inc., No. Civ. 9447 (JGK), 2002 WL 1610913, at *3 (S.D.N.Y. July 22, 2002).

b. The Title VII Claims Against the Individual Defendants Are Dismissed

The Plaintiffs have agreed that their Title VII claims against the individual Defendants are not actionable (Pls.' Br. in Opp'n 7). Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir. 1995). Those claims are therefore dismissed. However, it is noted that the same gender discrimination claims are asserted in the Complaint under the New York State Human Rights Law, and that law clearly permits claims against individual defendants even when federal law does not. Gregory v. Daly, 243 F.3d 687, 689 n. 1 (2d Cir. 2001); Tomka, 66 F.3d at 1313, 1317.

c. The Title VII Claims of the Promoted Plaintiffs Are Valid

Plaintiffs Tierney, Hannon, and Zayas were all promoted to Detective Second Grade as set forth above, yet they contend that they should have received their respective promotions sooner. Defendants counter that a delay in promotion, even if due to discrimination, does not constitute an adverse employment action necessary to support a Title VII claim. Although courts in this federal district have come to different conclusions regarding whether a delay in promotion constitutes an actionable adverse employment action under Title VII, such a claim will be recognized here.

In Davis v. City University of New York, No. 94 CIV. 7277 (SHS), 1996 WL 243256 (S.D.N.Y. May 9, 1996), the court stated:

The eventual grant of tenure and a promotion to Davis, even if after a delay, and even if that delay were due to discrimination or retaliation, contradicts her claim that she suffered a materially adverse change. Her allegations therefore do not make out a prima facie case under Title VII, § 1981, or the [New York State Human Rights Law], and the tenure and promotion claims made pursuant to those provisions must be dismissed.

1996 WL 243256, at *9; accord Rivera v. City of New York, 392 F. Supp. 2d 644, 654 (S.D.N.Y. 2005) (citing Davis, 1996 WL 243256, at *9; Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000); Evans v. City of New York, 00 Civ. 4197 (BSJ), 2003 WL 22339468, at *10-11 (S.D.N.Y. Oct. 14, 2003)) (finding initial psychological disqualification did not constitute an actionable adverse employment action).

In contrast to the holding in Davis, in Samuels v. New York State Department of Correctional Facilities, No. 94 CIV. 8645(SAS), 1997 WL 253209 (S.D.N.Y. May 14, 1997), the court considered plaintiff's claim for discriminatory delay in promotion. 1997 WL 253209, at *5-6. Even though the plaintiff inSamuels had been promoted on November 9, 1993, she alleged that she was qualified for that promotion as early as June 1993. Id. at *5. The Samuels court stated:

[P]laintiff has met her de minimus burden of showing that the delay in her promotion occurred in circumstances that could give rise to an inference of gender discrimination. All four of the persons promoted before plaintiff where males. This fact is sufficient to permit the inference that plaintiff was not promoted because she was female. . . . Summary judgment is therefore denied on this claim.

Id. at *6; see also Guinyard v. City of New York, 800 F. Supp. 1083, 1088-89 (E.D.N.Y. 1992) ("a delay in promotion may itself result in injury. . . . Even for those who were promoted, an illegal delay in promotion may still result in lost wages, benefits, and other types of injuries.").

Additionally, although other courts in this district have found similar claims of delayed promotion to be non-actionable on other grounds, they have recognized that a delay in promotion could constitute an adverse employment action supporting a valid Title VII claim. See, e.g., Staff v. Pall Corp., 233 F. Supp. 2d 516, 535-36 (S.D.N.Y. 2002) (finding claims of delayed promotion to be time-barred); Ettinger v. State Univ. of New York State Coll. of Optometry, No. 95 Civ. 9893(RWS), 1998 WL 91089, at *2-3 (S.D.N.Y. Mar. 2, 1998) (involving motion to dismiss on grounds that the delay in promotion was not due to discrimination);Shabat v. Blue Cross Blue Shield, 925 F. Supp. 977, 987-88 (W.D.N.Y. 1996) (finding lack of evidence that promotion should have happened sooner or that any delay was due to discrimination).

Accordingly, summary judgment on the grounds that there is no valid Title VII claim to be asserted by Plaintiffs Tierney, Hannon, and Zayas because they were eventually promoted is denied. d. Plaintiffs Have Established a Prima Facie Case of Discrimination Under Title VII

The Plaintiffs' claims of employment discrimination under Title VII as well as under the New York State Human Rights Law are governed at the summary judgment stage by the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), as outlined earlier. See supra. To establish a prima facie claim of failure to promote on the basis of gender, the Plaintiffs must establish that: (1) they were members of a protected class; (2) they applied and were qualified for the position sought; (3) they were denied the position; and (4) the circumstances of the adverse employment decision give rise to an inference of discrimination.¹² See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (citingMcDonnell Douglas, 411 U.S. at 802). If the plaintiffs fail to establish any element of their prima facie case, summary judgment is appropriate. Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126-29 (2d Cir. 2004).

12 Similarly, in the case of promoted Plaintiffs Tierney, Hannon, and Zayas, to establish a prima facie claim of discriminatory delay in promotion, the promoted Plaintiffs must establish that: (1) plaintiff was a member of a protected class; (2) plaintiff was qualified for the promotion; (3) plaintiff's promotion was delayed; and (4) the delay in promotion occurred in circumstances giving rise to an inference of discrimination. Samuels, 1997 WL 253209, at *5 (citing McDonnell Douglas, 411 U.S. at 802; Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991)).

Although Defendants do not dispute that the Plaintiffs have met the first three elements of the prima facie case (Defs.' Mem. in Supp. 25), they have contended that the denials of grade designations were not made under circumstances from which discrimination can be inferred and that the fourth element of theprima facie case has therefore not been established by the Plaintiffs. Defendants arguments, however, are unavailing.

First, an inference of discrimination sufficient to make out the prima facie case is made when the job benefit or position is awarded to someone outside the protected class. See, e.g.,Soderberg v. Gunther Int'l, 124 F. App'x 30, 31-32 (2d Cir. 2005); Diaz v. New York City Transit Auth., 98 F. App'x 58, 59 (2d Cir. 2004); Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001). Here, each of the Plaintiffs with a Title VII claim has submitted evidence that a Second Grade Detective designation for which she was qualified was awarded to or recommended for a male detective.¹³ Therefore, the fourth element of the prima facie case has sufficiently been established by the remaining Plaintiffs.

13 The designation for which Tierney was qualified was awarded to, inter alia, Sullivan, Dalton, Clarke, and later to Martin, Held, and Grzegorski; Chiclana's was awarded to Perez, Gilmore, Delipizzi, D'Allesandro, Salonia, Peterman, Guglielmo, and Hernandez; Kuerner's was awarded to Boncimino; Hannon's was awarded to Wansley; Rohan's was awarded to DiDomenico and Slender; Roman's was awarded to Neice, Riordan, Houlihan, and Hourihan; Zayas' was awarded to Caceres, Golina, Whitter, Truglia, and Calvanico; and Gerena's was awarded to Schwartz. It is noted that several of these claims are time-barred, as discussed previously. See supra.

Second, the Defendants have contended that Plaintiffs failed to satisfy the fourth element of the McDonnell Douglas test because at their depositions, Plaintiffs did not articulate a belief that discrimination was the sole reason why they were denied promotion. The law under Title VII is concerned with the employer's state of mind or intention, not the employees'. See,e.g., Gallagher v. Delaney, 139 F.3d 338, 350 (2d Cir. 1998);Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). As noted above, the fact that males were given the promotions being sought by the Plaintiffs is sufficient to create the inference that the reason was discrimination.

Finally, the Defendants have contended that it is too speculative for Plaintiffs to prove that they would have been promoted in the absence of Defendants discrimination. The evidence shows, however, that promotions were made from the squads where the Plaintiffs worked, often outside of the official designation process. Therefore, a jury could reasonably conclude that if recommendations for the Plaintiffs' Second Grade designations had been submitted and fairly acted upon and males had not been promoted outside of the official designation process, the Plaintiffs would have been promoted. e. Each of the Plaintiffs Has Met Her Burden Under Title VII

In determining whether each Plaintiff has met her burden, the court is to use a "case by case" approach that evaluates "`the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case.'" James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (quoting Reeves, 530 U.S. at 148-49). While the practice of non-enforcement of the official designation policy may have had a disparate impact on women throughout the NYPD, each Plaintiff here alleges specific harm by reason of that practice because each was more qualified to be recommended and promoted than the male detectives from their squads who received promotions to Detective Second Grade.

i. Tierney

Tierney seeks to establish factually that on the merits, she had a much better record than Detectives Sullivan, Clarke, and Dalton. As to Detective Martin, Tierney had 350 more arrests and had been recommended for Second Grade for several more year.

Additionally, Tierney seeks to establish that the required documentation in support of grade designation recommendations was not prepared by the Defendants.¹⁴ She seeks to further establish that, with respect to the promotion of male detectives, there was a lack of compliance with the official detective grade designation procedures except for the 2002 recommendation for Detective Grzegorski, whereas written recommendations for Tierney had been prepared since 1997. For example, there was no UF 49 explaining the basis for Detective Held's recommendation for Second Grade designation, yet Held was promoted in July 2002.

14 Inspector Brooks testified that written recommendations were not required in OCCB, that he never verified the factual accuracy of the verbal recommendations for grade, and that he had no knowledge of whether a Plaintiff's record was better than the male detectives. He merely relied upon the male captains in OCCB.

Therefore, there is evidence, based on the Robinson events and the challenged grade designations, creating a factual issue as to whether gender bias motivated the challenged designations and whether the explanations offered by the Defendants for the promotions of male detectives ahead of Tierney are pretextual. At the least, there is an issue as to these circumstances which creates an inference from which a trier of fact could impute a discriminatory motivation for delaying Tierney's promotion. ii. Chiclana

Chiclana served as a Third Grade Detective for thirteen years, received excellent evaluations, was recommended for Second Grade since 1997, and has testified that Detectives Lockhart, Gilmore, Salonia, Perez, and Peterman were promoted, all of whom were not as deserving as Chiclana was, based upon her overall record. No written recommendations were ever prepared to support the promotions of these detectives. Perez had a phone call made for him to Allee, who conceded in his deposition that there was such a phone call regarding the promotion of Perez. Perez was promoted from the 33rd Precinct and not Chiclana.

In addition, Chiclana has challenged the promotions of the male detectives in the 34th Squad who received Second Grade designations:¹⁵ there was no documentation for the promotion of Detectives D'Allesandro or Dellipizzi, and the UF 49 for Detective Guglielmo does not address the relevant criteria. Reznick, Cutter and Curry testified that Chiclana was more qualified than these male detectives. Therefore, Chiclana has adduced sufficient facts that create a factual issue as to whether the denial of promotion was based upon gender discrimination. iii. Kuerner

15 The 33rd and 34th are part of the Detective Borough Manhattan North and Chiclana did detective work in both squads.

Detective Kuerner was recommended for promotion and was placed on the list for promotion to Second Grade as of 1997. According to the departmental procedure, her name should have been resubmitted on subsequent lists. She had served as an undercover, as a squad detective, and as an analyst of crime data for identification of crime patterns for the entire Borough of Queens. She received excellent performance evaluations and became an expert witness in ballistics. According to Kuerner, the males who were recommended for or who received promotions out of the Forensic Investigation Division did not have comparable records and, based on the merits of her career and the recommendations she received, Kuerner should have been recommended and promoted instead of Detectives Ketels and Boncimino who were recommended for and promoted to Detective Second Grade, respectively, over Kuerner.

Additionally, evidence has been submitted that from 1995 to 2000, the male sergeants of the Firearms Section submitted lists of names as recommendations for Second Grade without reasons for the recommendations. All of the recommendations were for male detectives. From 1995 to 2003, no females were promoted from the unit in which Kuerner served. Therefore, sufficient evidence has been submitted to raise an inference of discrimination with respect to Kuerner's lack of promotion to Detective Second Grade.

iv. Hannon

Hannon met all the criteria for promotion to Detective Second Grade and had been recommended in compliance with the applicable procedure five times since 1997, including through the submission of a written recommendation by the commanding officer of the 45th Squad. Hannon testified that the official detective grade designation procedure as it actually operated was unfair to females. For example, in the 45th Squad, all the males who were put in for grade designation were promoted. Detective Wansley, new to the squad and without the required recommendation, received a Second Grade designation. As to Detective McLiverty, according to Hannon, she was recommended before he was, had a better record, and should have been promoted when Wansley was promoted. When Hannon, the first female in the 45th Squad, was put in for designation, however, she was passed over. Therefore, sufficient evidence has been submitted to raise an inference of discrimination with respect to Hannon's delayed promotion to Detective Second Grade. v. Zayas

Zayas had served as an undercover and as a squad detective in the 52nd Precinct Squad and in the Gang Squad in the Detective Borough Bronx. She was promoted to Detective Third Grade in 1989 and testified that males were favored over her for Second Grade even though she had a better arrest record and greater and more varied squad experience. According to Zayas, Detectives Calvanico, Caceras, Whitter, Sulla, Golina, Truglia and Caristo were less qualified than she, in that they had less case investigation experience and less experience over all as detectives. No written recommendations setting forth reasons for their promotions were produced for Sulla, Caceras, Golina, Whitter, or Calvanico.

At his deposition, Reznick testified that given the factors relevant for Second Grade designation, Zayas should have been put in for grade. Kennedy testified that he knew nothing in the records of Golino or Truglia that distinguished them for grade over Zayas, that Zayas was well qualified for grade, and that he had no knowledge of any factor that made any of the male detectives who had been submitted for grade more qualified than Zayas.

Zayas was recommended for Second Grade in 2004 under the new procedure and was promoted in July 2005. It is her contention that had Defendants followed the official detective grade designation procedure in 1999 and made grade selections based on the merits rather than on gender, she would have been promoted in 1999. Therefore, sufficient evidence has been submitted to raise an inference of discrimination with respect to Zayas' delayed promotion to Detective Second Grade.

vi. Rohan, Roman, and Gerena

The Defendants have contended that Rohan, Roman, and Gerena have no Title VII claims because they were never recommended for grade promotion. However, the Plaintiffs' claims are that, based upon their records, they should have been recommended but were not due to gender discrimination.

Rohan served as a Third Grade Detective for fourteen years and during her career made 588 arrests, translated Spanish for other detectives, and served as a squad detective. As to the males from her squad who received Second Grade designations, no documentation was provided except for Detective Slender, who Rohan agreed was a deserving detective, but not more so than she. Reznick testified that he had never seen any written recommendations for the male detectives who were recommended ahead of Rohan (Williams, Brusach, and Aguilar) and that "they may have just been called in." (Pls.' Ex. 13 at 181-82.) Additionally, Reznick testified that Rohan had a good arrest record and was a competent detective.

Roman was promoted to Third Grade Detective in 1991 and served in the Bronx Special Victims Squad and the Bronx Robbery Squad. No documentation was produced for the promotions of male detectives Riordan or Hourihan from the Special Victims Squad. As to the male detectives from the Robbery Squad and the Homicide Task Force who were recommended and who received promotion to Second Grade, Reznick confirmed that Roman should have been put in for grade, particularly when her record was compared with these male detectives from these squads. Similarly, Kennedy, who replaced Reznick as Detective Chief of the Bronx, testified that he knew of no designation-related factor that would distinguish the careers of male detectives Conneely, Ciuffi, O'Brien, Byrne or Grant, all of whom were recommended for grade designations over Roman. Further, no recommendations have been provided for the promotions of these male detectives. This factual showing raises an inference of discrimination sufficient to defeat the summary judgment motion.

Gerena was promoted to Detective Third Grade in 1989. She had squad experience working in the 41st and 42nd Squads. Reznick testified that based on her record, Gerena should have been recommended for Second Grade. Gerena testified that male detectives who were less competent were put in for grade because of their gender, not on the merits of their performance as detectives. No UF 49 was produced for male detectives Miraglia and Dawson, both of whom received recommendations from the 41st Precinct.

Overall, this proof establishes a prima facie showing of discrimination for each of the Plaintiffs. Although Defendants have offered explanations for the denial of promotion to Plaintiffs and for the selection of most of the male detectives who received promotions over Plaintiffs, taking the evidence as a whole, Plaintiffs have sufficiently established a likelihood of gender discrimination. Therefore, on this record, Defendants' motion for summary judgment is denied.

Conclusion

For the foregoing reasons, the Defendants' summary judgment motion is granted in part and denied in part.

With respect to the Plaintiffs' § 1983 claims, any claims based on the promotions of Detectives Garcia, Hackett, Lockhart, or Soto are time-barred and therefore dismissed. As to the Plaintiffs' § 1983 claims against the individual Defendants, the claims against Defendants Lawrence, Keller, and Dunne have been withdrawn, and the claim against Defendant Safir is dismissed due to Plaintiffs' failure to show any personal involvement on his behalf. Additionally, the § 1983 claims asserted by Plaintiffs Kuerner, Rohan, Roman, Genera, ana Zayas against any of the individual Defendants are also dismissed for failure to show the requisite personal involvement. The Defendants' motion to dismiss the § 1983 claims against the City as well as individual Defendants Allee, Kerik, Brown, Kelly, and Taylor is otherwise denied.

With respect to the Plaintiffs' Title VII claims, any claims based on the promotions of Detectives Clarke, Garcia, Hackett, Hourihan, Huthansel, Lockhart, Perez, Riordan, Slender, Soto, Sullivan, or Wansley are time-barred and therefore dismissed. Additionally, the Title VII claims against the individual Defendants are not actionable and are therefore dismissed. The Defendants' motion to dismiss the Title VII claims against the City is otherwise denied.

Finally, with respect to Plaintiffs' claims under the New York Executive Law, any claims based on the promotions of Detectives Garcia, Hackett, Lockhart, or Soto are time-barred and therefore dismissed.

It is so ordered.