The opinion of the court was delivered by: Judge Munley
Before the court for disposition is the defendants' motion for summary judgment (Doc. 16). Having been fully briefed, the motion is ripe for disposition.
This case involves claims of disability discrimination and sexual harassment relating to the plaintiff's employment at the Monroe County Correctional Facility. Plaintiff Wanda Rivera ("Rivera") was a correctional officer ("CO") at the Monroe County Correctional Facility ("MCCF") from July 20, 1998 until September 17, 2008. (Defs.' Statement of Undisputed Material Facts ¶ 1 (Doc. 18)). The MCCF is a jail owned by Defendant Monroe County, though the county notes that the prison is operated by the Monroe County Prison Board. (Id. ¶ 3). Defendant Captain Owen Thomas ("Thomas") was the Chief of Security at the MCCF during the relevant time period. (Id. ¶ 2).
The MCCF has a policy which sets grooming standards for its male and female COs. (Id. ¶ 6). The policy in place when Rivera worked at the MCCF stated that, for female COs, "[h]air shall be neatly groomed, and shall not present a ragged, unkempt or extreme appearance. Hair that is longer than shoulder length must be pulled back and then tied." (Id. ¶ 12).*fn1
Throughout the relevant time period Rivera had long hair that reached the middle of her back, but wore it tied back in a loose bun while working. (Id. ¶¶ 15, 16; Pl.'s Statement of Material Facts ¶ 17 (Doc. 20)). Rivera suffered from migraine headaches, blurred vision, dizziness, sensitivity to light, and hair loss when she pull her hair back into a tight bun. (Doc. 20 ¶¶ 21, 25). Rivera indicates that other symptoms of tightly pulling her hair back are her "inability to sleep normally, concentrate, work, or carry out basic activities of daily living." (Id. ¶ 15).
Rivera indicates that, during her tenure at the MCCF, female COs had not always been required to wear their hair up. (Doc. 20 ¶ 20). The hair policy was not enforced until a new warden-- Warden Kesling-- took over. (Id.) When Rivera tied her hair up she noticed her hair began falling out and she began having headaches. (Id.) Rivera obtained a medical excuse from her dermatologist, Dr. Paul Long, in November 2007. (Id.) Rivera's medical excuse allowed her to wear her hair tied back in a loose bun while working at the MCCF. (Doc. 20 ¶ 17). Rivera was also given work in the control center where her hair would be less of a safety concern. (Doc. 18 ¶ 19; Doc. 20 ¶19). Rivera's supervisors considered her an excellent employee. (See Doc. 20 ¶ 11).
On June 18, 2008, Thomas conducted a training session during the morning report. (Doc. 18 ¶¶ 30, 31). Thomas decided to train the COs on pat-down searches because he had observed a CO improperly conduct a search. (Doc. 18 ¶ 31). A pat-down search is a clothed search that does not involve touching an inmate's genitals or buttocks. (Doc. 18 ¶¶ 36, 37). As a CO, Rivera was responsible for supervising male inmates and might need to pat-down a male inmate during an emergency. (Doc. 18 ¶¶ 33, 35). However, Rivera had never seen a male CO pat down a female, or vice versa, in her ten years at the MCCF. (Doc. 20-2 at 273). According to CO Joseph Dougher, this training session was the first time he had seen a female CO forced to pat down a male at the MCCF. (Dougher Dep. (Doc. 20-2 at 138)). Similarly, Lieutenant Joseph Kramer had not seen a female pat down a male in his twenty-two years as a CO. (Kramer Dep. (Doc. 20-2 at 166)).
During the training session female CO Louise Kramer volunteered to perform a pat-down search of Thomas. (Doc. 18 ¶ 40). Subsequently, Thomas asked female COs Lisa Weizman and Melanie Desplat to perform a training scenario together. (Doc. 18 ¶ 41).
When Thomas called on Rivera to perform a pat-down search upon his person, she balked and looked to her supervisors to intervene, but ultimately conducted the training exercise without overt complaint. (Doc. 20 ¶ 43; Rivera Dep. (Doc. 20-2 at 288)). Rivera performed the search without objection because she felt refusal would have been insubordination. (Doc. 20-2 at 291). The search included Thomas's "arms, down his back, front of his chest, along the belt of his pants, the zipper part of the pants," groin, back pants pockets over the buttocks, down the legs, and his shoes. (Id. at 293 -295). Rivera heard comments to the effect that Thomas was getting "felt up" and she felt traumatized and humiliated. (Id. at 295 - 296).
Rivera claims she spoke afterwards with her supervisor, Sergeant Start, to complain about the incident. (Doc. 20 ¶ 43; Doc. 20-2 at 297). She also claims she spoke with her union representative three days after the incident, but was told that the seventy-two-hour window for filing a grievance had elapsed. (Doc. 20 ¶ 43). Finally, she claims she left messages for Warden Mauro and tried to meet with him in his office, but was unsuccessful. (Id.) The defendants claim that Rivera never raised her allegations of sexual harrassment until one month after she left the MCCF. (Doc. 18 ¶ 43).
Approximately one month after the training incident, in mid-July of 2008, Rivera was told that her prior medical excuse from her dermatologist was too general and needed specification. (Doc. 20-2 at 303). While Rivera was waiting for re-certification from her family physician Dr. Timothy Brown, Lieutenant Frabel told Rivera that if she did not put her hair up she would be sent home. (Doc. 20 ¶¶ 20, 21; Doc. 20-2 at 310). Rivera put her hair up, but could not work longer than two hours. (Doc. 20 ¶ 21). On August 18, 2008, Rivera gave Thomas a re-certification request for an accommodation regarding her hair, which Thomas forwarded to Bonnie Ace-Sattur ("AceSattur"), the Director of Monroe County Human Relations. (Doc. 20 ¶ 18; Doc. 18 ¶ 22). Ace-Sattur neither approved or denied the request for a re-certification of Rivera's accommodation. (Doc. 20 ¶ 19). Ace-Sattur informed Warden Mauro that he could either have Rivera put her hair up, have Rivera cut her hair, or remove Rivera from her position. (Id.) Rivera claims she was constantly warned that her hair was in violation of MCCF policy and sent to the control area to work. (Doc. 20 ¶ 21).
Rivera's employment at the MCCF ended on September 17, 2008. (Doc. 18 ¶ 1). The defendants characterize this event as a resignation, while Rivera claims she was constructively discharged. (Compare Doc. 18 ¶ 1 with Doc. 20 ¶ 1). Rivera's resignation letter of September 2, 2008 states:
I regret to inform you that as of September 17th, 2008 I will be terminating my employment with the Monroe County Correctional Facility. I appreciate the opportunities presented to me in my stay here. I enjoyed working with the excellent team on second shift. I was looking forward to a long career at MCCF, unfortunately unforseen circumstances have dictated otherwise. (Resignation Letter (Doc. 20-2 at 234)).
Rivera filed her complaint on August 13, 2009. (Doc. 1). Her complaint raises five claims: a claim of disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, against Monroe County (Count I); sexual harassment under Title VII of the Civil Rights Act, 42 U.S.C.S. §§ 2000e, et seq. against Monroe County (Count II); a claim under 42 U.S.C. § 1983 for violation of her rights under the Equal Protection Clause of the Fourteenth Amendment against Owen Thomas in his individual and official capacities (Count III); a claim under 42 U.S.C. § 1983 based on Monroe County's policy or custom of sexual harassment and discrimination, failure to train, failure to supervise (Count IV); and a claim under 42 U.S.C. § 1983 for violation of her First Amendment rights against Monroe County (Count V). (Doc. 1).
The defendants answered the complaint on September 29, 2009 and the parties engaged in discovery. (Doc. 9). On April 20, 2010 the defendants filed the instant motion for summary judgment, ...