Crews v. City of Ithaca

SARAH CREWS, Plaintiff, v. THE CITY OF ITHACA, JOHN R. BARBER, Chief of Police, Defendants.

3:17-cv-00213 (MAD/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 21, 2018

APPEARANCES:

OFFICE OF EDWARD E. KOPKO

308 N. Tioga Street

2nd Floor

Ithaca, New York 14850

Attorney for Plaintiff

ROEMER WALLENS

GOLD & MINEAUX LLP

13 Columbia Circle

Albany, New York 12203

Attorney for Defendants

CITY OF ITHACA

Office of the City Attorney

108 East Green Street

Ithaca, New York

Attorney for Defendants

OF COUNSEL:

EDWARD E. KOPKO, ESQ.

EARL T. REDDING, ESQ.

KEVIN M. LEVINE, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On February 23, 2017, Plaintiff Sarah Crews filed a complaint (the "Complaint") against Defendants the City of Ithaca and John R. Barber ("Barber") (collectively, "Defendants") alleging unlawful workplace discrimination under 42 U.S.C. § 2000e ("Title VII") and New York State Human Rights Law (Executive Law) § 296 ("NYSHRL"), as well as constitutional violations under 42 U.S.C. § 1983. See Dkt. No. 1 at ¶¶ 91-144. On June 22, 2017, Defendants filed a motion to dismiss. See Dkt. No. 15. Currently before the Court is Defendants' motion to dismiss. For the following reason, the motion is granted in part and denied in part.

II. BACKGROUND

Plaintiff Sarah Crews ("Plaintiff" or "Crews") is a police officer employed by Defendant City of Ithaca ("Ithaca"). See Dkt. No. 1 at ¶ 1. Plaintiff has worked for the Ithaca Police Department ("IPD") since 2007. See id. at ¶ 23. Throughout the course of serving in the IPD, Plaintiff has been openly gay and has never conformed to sex stereotypes. See id. at ¶¶ 24-25.

Although some of her coworkers at the IPD have been accepting of her sexual orientation and gender non-conforming appearances, this tolerance is not universal. See id. at ¶ 26. For example, when Plaintiff was just starting at the IPD, an officer posted an altered image of the "McLovin driver's license"¹ in the IPD men's locker room that replaced McLovin's face with hers. See id. at ¶ 28. Two officers were disciplined as a result of the "McLovin" affair. See id. at ¶ 30.

IPD policy requires uniformed police officers to wear a uniform. See id. at ¶ 31. Although many officers do not wear a tie with their uniform, Plaintiff regularly wears a tie when on duty. Id. at ¶¶ 31-32. While she has been in full uniform, some of her colleagues have commented that she looks like a "bus driver." Id. at ¶ 34. Plaintiff also alleges that "IPD officers have used non-verbal cues and behaviors to exclude Plaintiff from her peer group." Id. at ¶ 36.

In 2011, IPD modified its policies for searching, transporting, and supervising prisoners in their custody (collectively the "Search and Jail Policies"). See id. at ¶¶ 37-38. The transport procedure provides that

[w]henever possible, officers of the same gender as the prisoner will transport prisoners. Officers transporting prisoners of the opposite gender will notify the 911 Center of their destination, and starting and ending mileage. They will proceed without delay on the most direct route, and will notify the 911 center of any delays encountered.

Id. at ¶ 37. The search procedure provides that

[s]earching a female prisoner shall be accomplished by an on-duty female police officer, or other qualified female person when possible. If there is not a qualified female available the shift commander will be notified to make arrangements to provide one. The prisoner will remain secured and under constant supervision until a female officer can complete the search. . . . .

A search incident to arrest should generally be conducted by an officer of the same gender. If an officer of the same gender is not present, notify the Shift Commander in order to make arrangements to provide one. The prisoner will remain secured under constant supervision until an officer of the same gender can complete the search.

Id. Finally, the policy for supervision provides that

[s]upervision of female prisoners shall be accomplished by a female jailer and a female prisoner shall not be placed in or removed from a detention area unless the female jailer is present. The female jailer shall retain the key for the detention area unless the female jailer is present. The female jailer shall retain the key for the detention area for females and no male person shall be permitted to enter an area where female prisoners are detained unless accompanied by the female jailer.

Id. at ¶ 38.

The new Search and Jail Policies changed Plaintiff's duty requirements because IPD had an overwhelmingly male staff but dealt with an above average number of females in custody. Seeid. at ¶ 43. As a result, Plaintiff was required to transport, supervise, and monitor female prisoners more frequently than male officers. See id. at ¶ 40. According to the complaint, these interactions placed Plaintiff into compromising situations where she was often forced to physically interact with female prisoners. See id. at ¶ 44.

In March 2011, Plaintiff was assigned to supervise a female prisoner as she was the only available female officer. See id. at ¶ 46. The prisoner harassed Plaintiff, saying that Plaintiff's searches were sexually motivated. See id. The prisoner threatened to fabricate sexual harassment allegations, stating "[h]ey big gay woman, you want some of this? I'm gonna make it up that you did something to me." Id. at ¶ 47. After this encounter, Plaintiff voiced her concerns that the Search and Jail Policies failed to protect LGBTQ officers to her superior officers. See id. at ¶ 48. In the following years, Plaintiff would regularly lodge verbal complaints about the Search and Jail Policies when fellow officers would cite them in order to compel Plaintiff into conducting supervision or searches. See id. at ¶ 48.

On May 29, 2015, Plaintiff submitted a written complaint regarding the Search and Jail Policies (the "May Complaint") to Sergeant Banfield and Sergeant Nelson. See id. at ¶ 49. The May Complaint stated that the policies were discriminatory because they denied her, "an openly, and obviously, gay female," the same protections that the department afforded to male officers. Id. She noted that on more than one occasion, she had been directly threatened with fabricated complaints by female prisoners. See id. Plaintiff suggested that as IDP was reworking some policies as part of an accreditation renewal process, the department should review the Search and Jail Policies to find a workable solution. See id.

After she submitted the May Complaint, Plaintiff began to experience what she believes was a series of retaliatory actions in response to the complaint. The first retaliatory action wasthat her "beat" assignment changed. See id. at ¶ 50. The IPD allows officers to request placement on one of five primary beats. See id. at ¶¶ 51-52. In the forty days prior to submitting the May Complaint, Plaintiff was scheduled to her preferred beat fourteen times. See id. at ¶ 54. In the forty days after, Plaintiff was assigned to her preferred beat four times. See id.

On July 29, 2015, Plaintiff was called in to escort a female prisoner to the restroom. See id. at ¶ 55. When she arrived, Plaintiff discovered that a male officer had already taken the female prisoner to the restroom. See id. at ¶ 56. "Crews vented her frustration to Sergeant Nelson that she found the jail and search policies discriminatory because she was, from a sexual orientation standpoint, in the exact same position as the heterosexual male officers." Id. at ¶¶ 57, 60. She noted that she was concerned that she was "forced to have an inordinate amount of physical encounters with female prisoners." Id. at ¶ 59. She further expressed her concerns that the IPD had assigned her to non-preferred beats because of the written complaint. See id. at ¶ 58. After she finished, Sergeant Nelson accused Plaintiff of trying to avoid work by "barring herself from searching and jailing men and women," id. at ¶ 60, even though Plaintiff had always searched and jailed women when necessary, see id. at ¶ 61.

The confrontation ended with Sergeant Nelson accusing Plaintiff of insubordination. See id. at ¶ 63. On October 14, 2015, Plaintiff was given a notice of discipline (the "October Notice") charging her with violating the IPD's insubordination and courtesy policies as a result of this confrontation. See id. at ¶ 64. As a result of the October Notice, Plaintiff was forced to forfeit sixteen hours of vacation time and had a letter of reprimand placed in her permanent file. See Dkt. No. 15-3 at 21. The October Notice was signed by Defendant Barber. See id. Plaintiff believes that she was issued the October Notice because of her letter speaking out against the department's policies. See Dkt. No. 1 at ¶ 65.

On June 6, 2016, Sergeant Nelson called Plaintiff to the IPD's headquarters to search a female prisoner. See id. at ¶ 67. Upon arrival, Plaintiff saw there were multiple male officers available to search the prisoner. See id. at ¶ 68. Plaintiff felt that the IPD was using the Search and Jail Policies to ostracize her from her peers by highlighting her gender-nonconformity in front of her colleagues, which caused her to break down in tears. See id. at ¶ 69. A male lieutenant, who saw Plaintiff crying, approached her and asked her into his office without directing Plaintiff to first physically search the female prisoner. See id. at ¶ 70. The lieutenant informed Plaintiff that he was her superior officer for the shift and did not in any way reiterate that Plaintiff was still required to search the female prisoner. See id. at ¶ 71. At no point did the lieutenant tell Plaintiff that she was being insubordinate or discourteous. See id. at ¶ 72.

On July 27, 2016, Plaintiff was issued a second notice of discipline (the "July Notice"), alleging "that she violated IPD Rules and Regulations pertaining to insubordination and courtesy for her actions on June 6, 2016." Id. at ¶ 73. The July Notice...