Plaintiff Denise Valentin ("Valentin"), formerly an officer with the New York City Housing Authority Police Department ("Housing Police"), brings this action pursuant to 42 U.S.C. § 1983 and § 2904 seq. of the New York State Executive Law (the "Human Rights Law") against the City of New York, the Housing Authority, the Housing Police, Chief DeForrest Taylor, Deputy Inspector Dewey Fong ("Fong"), Deputy Inspector Gustave Moorehead ("Moorehead"), and Sergeant George Gaines ("Gaines"), all individually and as employees of the Housing Police. Valentin raises two claims under Section 1983: 1) she alleges that she was subjected to sexual harassment and discrimination as part of a hostile work environment, in violation of her Fourteenth Amendment right to equal protection; and 2) she alleges that her First Amendment right to free speech was violated when she was subjected to retaliation following her efforts to seek redress for this harassment and discrimination. By order dated March 26, 1996, Hon. Joanna Seybert, District Judge, referred this case to the magistrate judge for all purposes. Accordingly, the case was reassigned to the undersigned on May 2, 1996.

On December 18, 1996, the district court approved a stipulation withdrawing without prejudice plaintiffs claims against the City of New York and providing for dismissal with prejudice of plaintiffs claims against the City of New York within thirty days of disposition of this action.
However, this Court notes that the Housing Police may no longer be a proper party to this lawsuit either. First, on May 1, 1995, the Housing Police merged into the New York City Police Department ("NYPD") and, accordingly, ceased to exist. Thus, the Housing Police may no longer be a real party in interest, having been subsumed into the NYPD.
If so, this raises an issue as to whether the Housing Police or the NYPD, if it is now the real party in interest, is a suable entity under the New York City Charter. See New York City Charter, Chapter 16, Section 396 (providing that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York, and not in that of any agency, except where otherwise provided by law"); East Coast Novelty Co., Inc. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992) (dismissing claims against the NYPD because, as an agency of the city, it is not a suable entity under the New York City Charter); Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992) (same); Lucas v. New York City, 95 Civ. 0854 (MBM), 1995 WL 675477 *1 (S.D.N.Y. Nov. 14, 1995) (same); Campbell v. New York Police Dep't, 95 Civ. 1478 (FB), 1996 WL 118547 (E.D.N Y Mar. 8, 1996) (same); see also Jolly v. New York City Dep't of Corrections, 89 Civ. 4520 (JFK), 1989 WL 153053 *4 (S.D.N.Y. 1989) (dismissing claims against the Department of Corrections because, as an agency of the city, it is not a suable entity under the New York City Charter).
Neither party has addressed the status of the Housing Police or the Housing Authority in light of this consolidation. However, both the Housing Authority and the Housing Police appear to fall outside the province of the New York City Charter and thus appear to have independent legal existence outside of the City of New York. See N.Y. Public Housing Law §§ 400 et. seq. (McKinney 1989) (Supp. 1997) (constituting the Housing Authority and providing for the Housing Police); see also Signorile v. City of New York, 887 F. Supp. 403, 421-24 (E.D.N Y 1995) (substituting the City of New York in lieu of the NYPD pursuant to the New York City Charter, but granting plaintiffs motion for summary judgment against the Housing Authority); Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989).
To resolve these issues, the parties are hereby directed to contact the Court to arrange for briefing on the narrow issue of whether the Housing Authority, the Housing Police or the NYPD are properly named defendants in this action.

All of the defendants except for the City of New York have moved for summary judgment pursuant to Fed.R.Civ.P. 56, seeking to dismiss the action in its entirety. For the reasons set forth below, defendants' motion is denied. Defendants have also moved in limine to exclude the testimony of plaintiff's expert, Dr. Stephen Leinen. As set forth below, defendants' motion is denied in part and granted in part.

This Court, in accordance with its oral ruling on September 6, 1996, has not considered the testimony of plaintiffs expert in deciding the motion for summary judgment.

I. FACTUAL BACKGROUND

Valentin began her employment with the Housing Police on January 6, 1986. Following her field training, Valentin was assigned to a patrol squad in the Housing Police Public Service Area ("PSA") #4, where she received a satisfactory work performance evaluation. As a consequence, Valentin was recommended for assignment to the PSA #4 Narcotics Unit, which she joined in November 1990. In December 1990, Valentin was evaluated as "well above standards" by her immediate supervisor, Sergeant George Corbiere.

Valentin was the first woman ever to be assigned to that unit.

Valentin alleges that the incidents of sexual harassment began shortly after defendant Sergeant George Gaines replaced Sergeant Corbiere as the commanding officer of the PSA #4 Narcotics Unit in March 1991. Valentin claims that during the time that she worked for Gaines, she and other female police officers were regularly subjected to sexual harassment, including the daily use of sexually explicit language and commentary by Gaines and open discussions by Gaines of his sexual exploits. Plaintiff also alleges that she and other female police officers were routinely exposed to the workplace viewing of pornographic television and magazines by male co-workers and supervisors, and in particular alleges that Gaines viewed a pornographic magazine in the workplace and viewed pornographic videos during the execution of a search warrant.

At her deposition, plaintiff testified that Gaines would make sexually explicit comments in her presence "every day" and "everywhere we worked" — "[a]t the [public service area], in the van, in a car, on foot when we were together . . . on the job assignments, search warrants, or [observation posts]. (Valentin Dep. at 231). She offered the following examples of comments that Gaines directed to her and her co-workers regarding women generally: "[h]e would speak about how to eat a woman sexually;" "[h]e would mention `What a nice set of tits they had . . . or what a nice butt';" "he describ[ed] this Jamaican woman and he was describing the sexual act that he performed with her . . . how he, and I will quote and unquote, `fucked her.'" (Id. at 232-35). Plaintiff also described her reaction to this conduct. Plaintiff testified that "I didn't laugh along with the guys talking about women and sex because that was very unprofessional, it was very degrading to me and I felt like I was being violated." (Id., at 240-41). She added that "at times I would walk out of the room because I found it very unprofessional and degrading and extremely humiliating." (Id. at 304). Finally, plaintiff testified that based on Gaines's conduct in public, she felt that "[w]hen I was alone with Sergeant Gaines my main concern was that he wouldn't rape me or try to sexually assault me or fondle me . . . because th[e] only thing that was coming out of this man's mouth was of a sexual nature." (Id. at 242).

Plaintiff testified that after she encountered Gaines clipping pictures out of the pornographic magazine in the office on October 2, 1991, Gaines "didn't say anything to me. He didn't close the magazine to put it away or say anything regarding the magazine. He just looked at me, smiled, signed my paperwork, and I walked out of the office." (Id. at 262). Plaintiff testified that after she encountered Gaines watching the pornographic video during the execution of the search warrant on or about November 14, 1991, "[h]e looked at us and went back to watching the movie." (Id. at 287).

In addition to this alleged sexual harassment, Valentin also complains that she was subjected to discriminatory treatment by Gaines. Specifically, Valentin claims that while on duty on July 17, 1991, she injured her ankle and was taken to the hospital. Nevertheless, despite this work-related injury, Gaines allegedly denied her a "Line of Duty Injury Designation." As a result, Valentin was charged sick days for the time missed from work after this incident — days that were later cited by Gaines to support his contention that she had excessive absences.

Valentin alleges that a second incident of discrimination occurred in October 1991, after she allegedly conveyed her objections to Gaines's offensive conduct and requested that he cease his conduct. Following this conversation, which Valentin claims occurred between October 2 and October 22, 1991, Gaines directed her to report to court on the morning of October 22 to obtain a search warrant. Since Valentin had no knowledge of the confidential informant on whose information the warrant was to be based, nor any independent knowledge with regard to the warrant, she felt that it was inappropriate for her to seek the warrant and so informed Gaines. Gaines then asked a male officer to obtain the warrant. That officer declined, allegedly because he had a dental appointment. According to plaintiff, Gaines later reported to defendant Dewey Fong, then a Captain with the Housing Police, that plaintiff was uncooperative in making herself available to the needs of the Unit and cited this incident as an example, claiming that she had refused to change her tour of duty to secure the warrant.

Following his discussion with defendant Gaines, Fong allegedly contacted Lieutenant Luis Gonzalez, President of the Hispanic Society and an advocate for Hispanic officers. Fong asked Gonzalez to speak to Valentin about her performance and about the possibility of transferring her out of the Narcotics Unit. Valentin alleges that during her meeting with Gonzalez, he stated that her performance was unacceptable, that she had permitted her personal life to interfere with her job, and that she was going to be transferred out of the Narcotics Unit. Valentin, in turn, expressed her belief that she was being subjected to sexual harassment by Gaines. Following this conversation, Lieutenant Gonzalez allegedly spoke to Gaines and the other male members of the squad regarding her complaint.

Although Valentin is of Hispanic origin, she was not a member of the Hispanic Society, nor had she ever been personally supervised by Gonzalez. However, she claims to have had some prior contact with Gonzalez. Valentin alleges that at the suggestion of a fellow officer, she contacted Gonzalez before joining the narcotics unit. Valentin alleges that she was advised by Gonzalez, who said that he had heard that she "hated men," that she should "smile more around men." (Valentin Dep. at 102-03).

On November 5, 1991, pursuant to the advice of a fellow officer and representative of the Gay Officers Action League, plaintiff met with Fong and expressed her concerns about defendant Gaines's conduct. Defendant Fong allegedly did not believe that this conduct constituted sexual harassment and advised plaintiff to keep the matter with him at his level. He informed her that he would speak to the male members of the Unit, which he did briefly on November 7, 1991. Valentin contends that the harassing conduct nevertheless continued, as exemplified by the incident on November 14, 1991 when Gaines viewed a pornographic video while he, plaintiff, and other officers were executing a search warrant for narcotics in an apartment.

Plaintiff is herself gay and attributes at least a portion of the discriminatory treatment she has experienced to this factor.

At least one other officer who was a member of the Unit at the time has denied any recollection of this incident.

Following this incident and the Housing Police's failure to remedy the problem, in January 1992, Valentin requested a transfer back to her previous assignment. In early March 1992, Fong directed plaintiff to contact defendant Inspector Gustave Moorehead, Commanding Officer of the Housing Police's EEO Unit. On March 10, just two days prior to her scheduled meeting on March 12, 1992 with Moorehead, Valentin received an evaluation from Gaines in which he rated her as "meeting standards" — a lower rating than the "above standards" rating she received in 1991. On March 11, 1992, she was transferred to the Anti-Crime Unit.

Valentin later received a commendation for outstanding service from her supervisor in the Anti-Crime Unit.

After meeting on March 12 with Inspector Moorehead, Valentin filed an internal complaint of sexual discrimination and harassment against defendants Gaines, Gonzalez, and Fong. In June 1992, the internal EEO investigation commenced with the interview of witnesses by Lieutenant Pacinella. While the investigation was pending, Gaines was promoted to the position of detective sergeant in the detective bureau.

In approximately September 1992, Valentin re-injured her ankle. When she returned to duty on a limited basis in October, she was notified that she had been involuntarily transferred by Fong to a clerical assignment at the Housing Police Personnel Services Bureau.

On February 23, 1993, Valentin filed a complaint with the New York City Human Rights Commission. In April 1993, Valentin was again transferred, this time to the Health Service Unit. Valentin was allegedly told at that time that the reason for the transfer was the civilianization of the Personnel Services Bureau, although Valentin alleges that she was the only officer transferred out of the Bureau and that other officers were actually transferred into the Bureau.

The final EEO investigation report dated November 29, 1993 was transmitted to defendant Chief Taylor's office some time in March 1994. In that final report, Chief Taylor recommended "sensitivity" training for defendant Gaines and "counseling" for Fong. In spite of the latter recommendation, Fong was thereafter assigned as Commanding Officer of the Housing Police EEO Unit.

Plaintiff alleges that there was no training on sexual harassment conducted at PSA #4.

In her federal complaint, Valentin has sued for compensatory damages for various physical injuries, including sleeplessness and nightmares, stomach problems, and rectal bleeding. She has also sought psycho-therapeutic counseling and joined Alcoholics Anonymous as a result of the harassment and retaliation inflicted on her by the defendants.

II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT A. Standards

It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976); Gibralter v. City of New York, 612 F. Supp. 125, 133-34 (E.D.N.Y. 1985), the court should, not grant summary judgment unless it is clear that all of the elements have been satisfied. Auletta v. Tully, 576 F. Supp. 191, 194 (N.D.N.Y. 1983),aff'd, 732 F.2d 141 (2d Cir. 1984). In addition, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

Once the moving party discharges its burden of proof under Rule 56 (c), the party opposing summary judgment "has the burden of coming forward with `specific facts showing that there is a genuine issue for trial.'" Phillips v. Kidder, Peabody Co., 782 F. Supp. 854, 858 (S.D.N.Y. 1991) (quoting Fed.R.Civ.P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. Indeed, "the mere existence ofsome alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis added).

In recently reversing a grant of summary judgment, the Second Circuit noted that the "[t]rial court's task at the summary judgment motion stage of litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them."Quarantino v. Tiffany Co., 71 F.3d 58, 65 (2d Cir. 1995) (quoting Gallo v. Prudential Residential Serv., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994)). Particularly in employment discrimination cases where issues of intent and state of mind are often critical and facts are subject to different interpretations, the Second Circuit has cautioned district courts to hesitate in granting motions for summary judgment. Gallo v. Prudential Residential Serv., L.P., 22 F.3d at 1224.

B. Plaintiff's Claim of Sexual Harassment

In the Second Circuit, claims of sexual harassment in public workplaces are actionable under Section 1983 as violations of the Fourteenth Amendment right to equal protection. Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994); see also Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143-44 (2d Cir. 1993), cert. denied, 114 S.Ct. 1189 (1994); Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir. 1994); Wise v. New York City Police Dep't, 928 F. Supp. 355, 366-67 (S.D.N.Y. 1996). Liability under Section 1983 "can be imposed upon individual employers, or responsible supervisors, for failing properly to investigate and address allegations of sexual harassment when through this failure, the conduct becomes an accepted custom or practice of the employer." Gierlinger v. New York State Police, 15 F.3d at 34.

Defendants argue that they are entitled to summary judgment on plaintiffs claims because she has failed to produce evidence which raises a material issue of fact or which would permit a trier of fact to draw an inference of discrimination. Specifically, they claim that she cannot establish that the activity she complains of was either directed at her or constituted sexual harassment or that the offending conduct continued once she voiced objection to it.

Since "[t]here is no clear law in this circuit as to the scope of liability for a hostile work environment under Section 1983 . . . in contrast to the highly articulated elements of liability for a Title VII hostile environment theory," Title VII authority offers "significant guidance" in assessing an analogous Section 1983 claim. Cohen v. Litt, 906 F. Supp. 957, 963-64 (S.D.N Y 1995). In order to establish a prima facie case of sexual harassment based on a hostile work environment under Title VII, the Court of Appeals for the Second Circuit has required a plaintiff to demonstrate "(1) that she is a member of a protected group; (2) that she was subject to unwelcome advances; (3) that the harassment was based upon her sex; and (4) that the harassment affected a term, condition or privilege of employment." Cosgrove v. Sears. Roebuck Co., 9 F.3d 1033, 1042 (2d Cir. 1993) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)). Adapting this standard to accommodate the equal protection clause's requirement of intentional discrimination, courts have developed the following test for an equal protection violation under Section 1983: "a violation under § 1983 occurs when (1) the plaintiff was subject to intentional harassment, (2) based on sex, (3) under color of state law, and (4) sufficiently extensive to render the work environment hostile to a plaintiff" Cohen v. Litt, 906 F. Supp. at 964;see also Wise v. New York City Police Dep't, 928 F. Supp. at 367.

In order to determine whether an employee was subjected to conduct sufficient to constitute a hostile work environment, the court must consider "all the circumstances," such as the frequency and severity of the conduct, whether it was physically threatening or humiliating, whether the employee suffered psychological harm and whether it "unreasonably interferes with an employee's work performance." Harris v. Forklift Systems. Inc., 510 U.S. 17, 23 (1993). However, "no single factor is required." Id. Courts employ an objective test to determine whether a hostile work environment existed: "[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive —" is not actionable. Id. at 2. Accordingly, when the plaintiff can show that the harassment unreasonably interfered with her work performance or created "an intimidating, hostile, or offensive working environment," Tomka v. Seiler Corp., 66 F.3d 1295, 1304-05 (2d Cir. 1995), plaintiff is entitled to recovery.

In a recent case, the Second Circuit appeared to apply — but did not explicitly adopt — "a more contextualized standard." Torres v. Pisano, 116 F.3d 625, 632-33, n. 6 (2d Cir. 1997). The court noted that several other circuits have already held that the standard governing a hostile work environment claim should be that of a reasonable person with the same fundamental characteristics, such as race, sex, or religion. Id. (citing Newton v. Dep't of the Air Force, 85 F.3d 595, 599 (Fed. Cir. 1996); Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995); West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995); Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 962, n. 3 (8th Cir. 1993); Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir. 1987)). The court stated that the Supreme Court's decision in Harris did not foreclose the use of "a more contextualized standard" than the unadorned "reasonable person" standard. Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. at 22-23).
Applying these principles in Torres, a case brought by a Puerto Rican female, the court ruled that "a reasonable woman would find her working conditions altered and abusive" and "a reasonable Puerto Rican would find a workplace . . . to be hostile" when she was subjected to offensive remarks based on her sex and ethnicity, such as "dumb cunt" or "dumb spic." Id.

In a hostile work environment analysis, courts have held that the frequency of the alleged conduct should be inversely related to the severity of the incidents; accordingly, the more severe the individual incidents, the fewer there need to be actionable. See, e.g., Equal Employment Opportunity Commission v. A. Sam Sons Produce Co., Inc., 872 F. Supp. 29, 35, n. 13 (W.D.N.Y. 1994) (noting that a single incident, if sufficiently intense, may be actionable). As to the frequency of the conduct alleged, the Second Circuit has stated that, generally, "[t]he [harassing] incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief" Kotcher v. Rosa Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992) (citing Carrero v. New York City Housing Authority, 890 F.2d 569, 578 (2d Cir. 1989)). However, the Second Circuit has also emphasized that:

[a] female employee need not subject herself to an extended period of demeaning and degrading provocation before being entitled to seek the remedies provided under Title VII. It is not how long the sexual innuendos, slurs, verbal assaults, or obnoxious course of conduct lasts. The offensiveness of the individual actions complained of is also a factor to be considered in determining whether such actions are pervasive.

Carrero v. New York City Hous. Auth., 890 F.2d at 578. Regarding the severity of the conduct alleged, the mere utterance of an offensive epithet may not constitute a cause of action, Meritor Savings Bank v. Vinson, 477 U.S. at 67, nor would "coarse, hostile, and boorish behavior" alone give rise to a constitutional tort. Annis v. County of Westchester, 36 F.3d at 254.

Applying these principles to the case at bar, this Court finds that Valentin's claims of sexual harassment are not, as defendants contend, limited to "[t]rivial events and sporadic comments." (Defendants' Memorandum of Law in Support of the Motion for Summary Judgment ("Defts. Summary Judgment Memo.") at 9). Rather, Valentin has established evidence of a series of actions and incidents sufficiently pervasive to raise an issue of fact as to the existence of a hostile working environment and thus, survive defendants' motion for summary judgment.

Apart from Valentin's own testimony regarding the regular use by Sergeant Gaines of sexually explicit verbal comments about women and about his exploits with women, Valentin has presented evidence showing that other rank and file female officers, as well as command officers, were aware of the conduct. (Plaintiff's Counter Rule 3(g) Statement, ¶¶ 18, 19, 35-45, 50-52, 60-63) (citing to depositions of various officers)). Verbal conduct, such as sexual slurs, persistent comments about a woman's body, the telling of sexually related jokes or boasting about sexual conquests, has been held legally sufficient to sustain a claim of hostile work environment. See Harris v. Forklift Systems. Inc., 510 U.S. at 19 (finding a hostile work environment where a supervisor insulted an employee because of her gender, called her a "dumb ass woman," suggested that she accompany him to a Holiday Inn to negotiate her raise, and invited the plaintiff and other female employees to get coins from his front pants pocket); Kotcher v. Rosa Sullivan Appliance Center, 957 F.2d 59, 61 (2d Cir. 1992) (finding a hostile work environment where a supervisor pretended to masturbate behind an employee's back and suggested that her sales were due to her "bodily equipment"); Bridges v. Eastman Kodak Co., 822 F. Supp. 1020, 1027-28 (S.D.N.Y. 1993) (stating that an employee's general allegations regarding defendant's "foul language" and "sexual innuendo," buttressed by specific examples, satisfied the requirement that the employee demonstrate that she was subject to unwelcome sexual harassment); Bush v. Raymond Corp., 954 F. Supp. 490, 494 (N.D.N.Y. 1997) (denying defendant's motion for summary judgment where plaintiff alleged that her employer made sexually oriented and demeaning remarks "on an almost daily basis"); Shull v. Rite Aid Corp., 1997 WL 289460 *6 (S.D.N.Y. May 30, 1997) (denying defendant's motion for summary judgment where plaintiff alleged "at least six explicitly sexual" comments, as well as "a number of other intimidating and insulting incidents which she contends were motivated by her sex").

Moreover, the evidence presented by Valentin raises a material issue of fact as to the display of pornographic materials in the office and the incident involving the alleged viewing of a pornographic video tape while Valentin and other officers executed a narcotics search warrant. Although defendants dispute that these incidents occurred, the question is clearly one of credibility which a jury is uniquely positioned to decide. If believed, the evidence adduced by Valentin would allow a reasonable jury to draw the inference that the totality of these incidents created a hostile work environment. Indeed, similar instances of the display of pornography in the workplace have been sufficient to warrant the denial of summary judgment in other cases. See, e.g., Barbetta v. Chemlawn Service Corp., 669 F. Supp. 569, 573 (W.D.N.Y. 1987) (denying defendant's motion for summary judgment and noting that "[w]hether the proliferation of demeaning pornography and comments was sufficiently continuous and pervasive to establish a concerted pattern of harassment in violation of Title VII is a question of fact which must be determined at trial");Sanchez v. City of Miami Beach, 720 F. Supp. 974, 977 (S.D. Fla. 1989) (concluding that a sexually hostile work environment was created in a police department when male officers subjected a female officer to "a plethora of sexually offensive posters, pictures, graffiti and pinups placed on the walls and throughout the Police Department" and "innumerable childish, yet offensive sexual and obscene innuendoes and incidents aimed at her on the basis of sex"). As the court in Barbetta v. Chemlawn Service Corp. observed, "the proliferation of such material may be found to create an atmosphere in which women are viewed as men's sexual playthings rather than as their equal co-workers." 669 F. Supp. at 573. Accordingly, "`sexual posters and anti-female language can seriously affect the psychological well-being of the reasonable woman and interfere with her ability to perform her job.'" Id., n. 2 (citation omitted).

Defendants argue that summary judgment should be granted because Valentin has failed to demonstrate that the conduct was directed at her personally: it "defies logic [to argue] that the activity was gender-related, or that she was treated differently than a similarly situated person of the other gender." (Defts. Summary Judgment Memo. at 8-9). This argument is frivolous. Unlike the conduct discussed in the cases cited by defendants in support of this contention, the actions allegedly taken by Sergeant Gaines were not generally hostile to all people; they were hostile to women and clearly based on sex. Thus, the fact that defendant Gaines may not have made sexually explicit comments about Valentin herself does not defeat her claim of sexual harassment. "[T]he conduct underlying a sexual harassment claim need not be sexual in nature as long as the conduct is directed at the employee because of his or her sex. Adopting such a standard recognizes that `intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances.'" Dortz v. City of New York, 904 F. Supp. 127, 150 (S.D.N.Y. 1995) (noting that offensive statements made to other staff outside of plaintiff's presence may also be viewed by a factfinder as having contributed to creating a hostile work environment). Moreover, "[w]hile some of these incidents were not directed specifically at [plaintiff], and others were not witnessed by her, they are all evidence of a hostile and sexually offensive working environment." Barbetta v. Chemlawn Services Corp., 669 F. Supp. at 572. A reasonable jury could certainly find that Valentin experienced a hostile working environment as a consequence of being exposed to her superior's daily use of sexually explicit comments and episodic viewing of pornography while at work.

Finally, defendants argue that once Valentin objected to defendant Gaines' conduct, the sexual harassment ceased and therefore, she cannot claim any violation of her rights. However, based on a review of the evidence proffered by Valentin, this Court finds that the factual premise of defendants' argument is an issue that is in dispute. The evidence presented by Valentin raises material issues of fact regarding whether the offensive conduct in fact terminated and whether the Housing Police took sufficient or appropriate steps to deal with the problem. Valentin's evidence, if believed, was that Gaines's conduct continued even after she voiced her objections, and that the only actions taken by the Housing Police in response to Valentin's concerns were the brief comments made by defendant Fong to the unit. Valentin has presented sufficient evidence which, if believed, could form the basis for a jury determination that her rights continued to be violated even after she raised her objections.

Thus, viewing the totality of the circumstances in the light most favorable to plaintiff, this Court concludes that Valentin has presented sufficient evidence to raise a material issue of fact regarding the existence of a hostile work environment. Accordingly, defendants' motion for summary judgment on plaintiffs sexual harassment claim is denied.See Barbetta v. Chemlawn Services Corp., 669 F. Supp. at 572-73.

C. Plaintiff's First Amendment Claim

Valentin has also alleged that, as a result of her complaints against Gaines, she was subjected to retaliation in violation of her right to free speech. Defendants argue that they are entitled to summary judgment on this First Amendment claim because Valentin's complaints were intended to address her own personal situation and therefore do not qualify as "protected speech."

It is well-established that although a public employer enjoys broad discretion in managing the affairs of its office, Connick v. Myers, 461 U.S. 138, 146 (1983), and has a "legitimate interest in regulating the speech of its employees," Piesco v. City of New York, 933 F.3d 1149, 1155 (2d Cir.), cert. denied, 502 U.S. 921 (1991), a public employer nonetheless cannot retaliate against an employee when the employee exercises his right to free speech under the First Amendment. Rankin v. McPherson, 483 U.S. 378, 383-84 (1987); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1057-58 (2d Cir.), cert. denied, White Plains Towing Corp. v. Wright, 510 U.S. 865 (1993). To succeed on a claimed violation of her right to free speech, plaintiff must show by a preponderance of the evidence: 1) that the speech was constitutionally protected; 2) that she suffered an adverse employment decision; and 3) that the speech at issue was a substantial causal or motivating factor in the decision. Mt. Healthy City Sch. Dist. Bd. of Education v. Doyle, 429 U.S. 274, 283-87 (1977); Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994). If the plaintiff can establish these elements, the defendants may avoid liability if they can show by a preponderance of the evidence that the adverse employment decision would have been made "even in the absence of the protected conduct," Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. at 287, or that the employee's action interfered with the employer's "fulfillment of its responsibilities to the public."White Plains Towing Corp. v. Patterson, 991 F.2d at 1059 (quoting Connick v. Myers, 461 U.S. 138, 150 (1983)).

Regarding the first prong of the test, the question of whether the speech is protected is a question of law for the court. See Connick v. Myers, 461 U.S. at 148, n. 7; Ezekwo v. New York City Health Hosp. Corp., 940 F.2d 775, 781 (2d Cir. 1991), cert. denied, 502 U.S. 1013 (1991). Speech by a government employee is only protected if it addresses a matter of public concern — if it can be "fairly considered as relating to any matter of political, social, or other concern to the community." Connick v. Myers, 461 U.S. at 146; see also Waters v. Churchill, 511 U.S. 661, 668 (1994); Ezekwo v. New York City Health Hosp. Corp., 940 F.2d at 781. If an employee's speech relates solely to issues that personally concern the employee, the speech is not generally protected. Connick v. Myers, 461 U.S. at 146; Ezekwo v. New York City Health Hosp. Corp., 940 F.2d at 781 (holding that a resident's complaints about the aspects of a residency program that affected her did not implicate matters of public concern); accord Saulpaugh v. Monroe Community Hosp., 4 F.3d at 143 (holding that speech related to an individual's personal situation is not protected). However, the fact that an employee has a personal interest in the subject does not automatically disqualify that speech from the protections of the First Amendment. See Rodriguez v. Chandler, 641 F. Supp. 1292, 1299 (S.D.N.Y. 1986), aff'd, 841 F.2d 1117 (2d Cir. 1988) (noting that plaintiffs advocacy in support of minority rights, "while no doubt advancing his own interests . . . also advanced the interests of others similarly situated"); O'Malley v. New York City Transit Auth., 829 F. Supp. 50, 54 (E.D.N Y 1993) (noting that "`a topic otherwise of public concern . . . [does not] . . . lose its importance merely because it arises in an employee dispute"') (quotation omitted). The issue, as defined by the Second Circuit in Rao v. New York City Health Hosp. Corp., is "whether the employee is seeking to vindicate a personal interest or to bring to light a `matter of political, social, or other concern to the community.'" 905 F. Supp. 1236, 1243 (S.D.N.Y. 1995) (quoting Connick v. Myers, 461 U.S. at 146). Accordingly, an employee who seeks to bring to light wrongdoing by public employers does address a matter of public concern.Id.

Defendants contend that since Valentin's complaints to her supervisor and to the EEO Unit were intended to address her own personal situation and not intended to address systemwide discrimination, her claims under the First Amendment must be dismissed. By contrast, Valentin claims that through her complaints, she was seeking to expose and alter a sexually harassing, hostile work environment that affected all women in PSA #4 and not her own personal advancement.

Based on the evidence presented, this Court finds that there is a disputed issue of material fact concerning what Valentin actually said and whether Valentin's complaints related solely to her own personal situation or whether her complaints implicated "system-wide" discrimination and sexual harassment of other women in defendant Gaines's command. (Pl. Memo. at 56). Since "[s]exual harassment within the Police Department is a matter of public concern," Poulsen v. City of North Tonawanda, 811 F. Supp. 884, 894 (W.D.N.Y. 1993), Valentin's complaints about the sexually hostile working environment within PSA #4 do address a matter of public concern and thus, they constitute protected speech. Summary judgment for the defendants is therefore not appropriate under these circumstances. See id. (denying police department's motion for summary judgment where the court found that "[a]lthough [plaintiff's] primary motivation for filing her EEOC complaint was to stop the harassment against her personally, she raised an issue of public concern in criticizing the treatment of women in the Police Department"). See also Rodriguez v. Chandler, 641 F. Supp. at 1299 (denying a motion to dismiss the complaint of a minority professor who challenged his denial of tenure because his challenge, while personal, "also advanced interests of others similarly situated"). What Valentin told Gaines and Fong and what was said and done in response to her complaints are factual issues in dispute. Similarly, whether Valentin complained about a systemic and pervasive hostile work environment that affected all women and whether her efforts were directed to correcting the overall situation are questions of fact that cannot be resolved on a motion for summary judgment. Accordingly, viewing the totality of circumstances in the light most favorable to plaintiff, this Court denies defendants' motion for summary judgment on this claim as well.

Defendants also contend that apart from her inability to satisfy the first prong of the test, Valentin cannot show that she suffered any adverse employment action as a result of the alleged retaliation. Valentin has alleged that as a result of her complaints to Captain Fong and the EEO Unit, she was "subjected to re-deployment to a dead-end career position, foreclosing her from ever achieving any kind of real career advancement within the Housing Authority Police Department." (Pl. Memo. at 7). Given that this Court has found that disputed factual issues preclude the entry of summary judgment on the First Amendment claim, there is no need for this Court to address the reasons for Valentin's discharge until the issue of her speech as a matter of public concern is resolved.Cf. Knowlton v. Greenwood Independent School District, 957 F.2d 1172, 1178 (5th Cir. 1992) (holding that "if the speech in issue does not cross the first threshold, we can proceed no further").

D. Plaintiff's Conspiracy Claim

Defendants also seek to dismiss plaintiffs claim that the Housing Police defendants conspired to deprive her of her constitutional rights. Specifically, they argue that she has failed to allege sufficient facts in her complaint to suggest any agreement between the defendants to abridge her constitutional rights, in violation of 42 U.S.C. § 1983.

Based on the evidence presented by plaintiff, this Court finds that there is a sufficient factual basis from which a jury could infer an illegal agreement. Not only has plaintiff presented evidence from which a jury could infer that efforts were made on the part of supervisory officials such as Fong to contain plaintiffs complaints within the unit, but also that steps were taken to retaliate against plaintiff and to reward defendants even while the investigation was pending. Although admittedly circumstantial, the evidence does raise the question of whether defendants were working together to deal effectively and properly with plaintiff's concerns, or whether, instead, as plaintiff alleges, their actions demonstrate an understanding or agreement to retaliate against her for raising these issues.

Accordingly, defendants' motion for summary judgment dismissing the conspiracy claims is denied.

E. Qualified Immunity

Each of the individual defendants argues that even if there are disputed issues of material fact, the claims against them individually should be dismissed under the doctrine of qualified immunity. The qualified immunity defense reflects an attempt by the courts to balance the competing interests of "a damages remedy to protect the rights of citizens" with "`the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.'" Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (quoting Butz v. Economou, 438 U.S. 478, 504-505 (1978)). Redefining the limits of qualified immunity in essentially objective terms, the court in Harlow v. Fitzgerald held that qualified immunity shields government actors from liability from damages when they are sued in their personal capacity, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known" at the time the action was taken. 457 U.S. at 818; see also Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 184-85 (N.D.N.Y. 1996) (citing Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). Accordingly, if the law was clearly established, then an immunity defense will generally fail, "since a reasonably competent public official should know the law governing his conduct." Harlow v. Fitzgerald, 457 U.S. at 819-20. If the official can prove that he neither knew or should have known about the relevant legal standard, however, then the defense should succeed. Id. at 820.

Thus, to establish a qualified immunity defense, an officer must show "either that his conduct did not violate `clearly established rights' of which a reasonable person would have known, or that it was `objectively reasonable' to believe that his acts did not violate these clearly established rights." Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990) (quoting Warren v. Dwyer, 906 F.2d 70, 74 (2d. Cir. 1990) andCalamia v. City of New York, 879 F.2d at 1035). In conducting this inquiry, courts should examine the unique facts and circumstances of each case to determine whether "[t]he contours of the right [are] sufficiently clear that a reasonable officer would understand that what he is doing violates that right . . . ." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Three factors are relevant in determining whether a legal rule was "clearly established" at the time of the challenged action: (1) whether the right was defined with "reasonable specificity;" (2) whether the decisional law of the Supreme Court and the Second Circuit supports the existence of the right; and (3) whether, under pre-existing law, a reasonable official would have understood that his or her acts were unlawful. Warren v. Keane, 937 F. Supp. 301, 306 (S.D.N.Y. 1996) (citing Soares v. State of Connecticut, 8 F.3d 917, 922 (2d Cir. 1993)); see also Rodriguez v. Phillips, 66 F.3d 470, 476 (2d Cir. 1995).

In essence, defendants contend that their actions were objectively reasonable and did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known."Harlow v. Fitzgerald, 457 U.S. at 818. Presumably, defendants do not dispute that under established case law, liability can be imposed upon a showing that Valentin suffered sexual harassment and sexual discrimination in the workplace or an infringement of her First Amendment right to free speech on matters of public concern. Instead, defendants argue that because plaintiff has failed to show that she was treated any differently from the male officers in the unit and because her speech concerned only personal claims of sexual harassment, the doctrine of qualified immunity bars plaintiffs claims against them in their individual capacity.

As set forth above, there are material issues of fact in dispute with regard to each of these claims which precludes the granting of summary judgment at this time. Thus, even though the question of immunity is ordinarily one for the court to decide, "that is true only where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required." Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994), cert. denied, 513 U.S. 1076 (1995). As the court in Lennon v. Miller noted:

[A] defendant is not entitled to summary judgment on qualified immunity grounds when "no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff, could conclude that it was objectively unreasonable for the defendant" to believe that he was acting in a fashion that did not clearly violate an established federally protected right.

66 F.3d 416, 420 (2d Cir. 1995) (quoting Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987)). Here, viewing all of the evidence in a light most favorable to the plaintiff, the party opposing the motion for summary judgment, a jury could find that it was not objectively reasonable for defendants to believe that they were acting in a fashion that did not violate plaintiff's constitutional rights. Moreover, as plaintiff points out, her complaint seeks more than just monetary relief against the individual officers; she also seeks injunctive and declaratory relief under section 1983 — forms of relief which are not precluded by claims of qualified immunity. See Pulliam v. Allen, 466 U.S. 522, 541-42 (1980); Supreme Court of Virginia v. Consumers Union, Inc., 446 U.S. 719, 736 (1980). Accordingly, this Court denies defendants' motion for summary judgment based on their defense of qualified immunity.

F. Plaintiff's Monell Claim Against the Housing Police

In her complaint, plaintiff also alleges that the Housing Police have an unconstitutional policy or practice of tolerating and condoning the type of sexual harassment and discrimination experienced by plaintiff Defendants argue that these claims against the Housing Police must be dismissed because plaintiff has failed to demonstrate the elements necessary to sustain a Section 1983 action against a municipality as required by Monell v. Dep't of Social Serv. of the City of New York, 436 U.S. 658, 690 (1978).

Under Section 1983, a municipal agency may not be held liable for constitutional violations caused by its employees solely on the basis of respondeat superior; rather, the plaintiff must prove that a policy, custom or practice of the agency caused the constitutional violation.Id. at 694. The policy, custom, or practice need not be formal or explicitly adopted in a rule, regulation, or ordinance. Id. at 691;Ricciuiti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991). Rather, a persistent and widespread discriminatory practice, if sufficiently "permanent and well settled," will constitute a "`custom or usage' with the force of law." Monell v. Dep't of Social Serv., 436 U.S. at 691 (quoting Adickes v. S.H. Kress Co., 398 U.S. 144, 168 (1970)). Moreover, regardless of whether it is carried out by policymakers, senior officials, or even subordinate employees, a persistent and widespread practice may constitute municipal policy giving rise to liability,Sorlucco v. New York City Police Dep't, 971 F.2d 864, 871, and under certain circumstances, even a single act taken by a municipal policymaker can subject the municipality to liability. Pembaur v. Cincinatti, 475 U.S. 469, 480 (1986).

Plaintiff's Monell claim of municipal liability may also be based on proof of a policymaker's inadequate training or a failure to supervise subordinate employees. City of Canton v. Harris, 489 U.S. 378, 387 (1989). In City of Canton v. Harris, the Supreme Court ruled that a claim of insufficient training or supervision will trigger municipal liability only where "the failure to train amounts to deliberate indifference to [a plaintiffs] rights." Id. at 388. The Second Circuit has elaborated "three requirements that must be met before a municipality's failure to train or supervise constitutes deliberate indifference to the constitutional rights of citizens." Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993). According to these requirements, the plaintiff must demonstrate: (1) "that a policymaker knows `to a moral certainty' that [his] employees will confront a given situation;" (2) "that the situation either presents the employee with a difficult choice of the sort that training or supervision makes less difficult or that there is a history of employees mishandling the situation;" and (3) "that the wrong choice by the city will frequently cause the deprivation of a citizen's constitutional rights." Id. at 297-98 (quoting City of Canton v. Harris, 489 U.S. at 390).

Here, plaintiff Valentin raises two claims. First, she claims that the actions of defendant Chief Taylor, "the final policy maker for the Housing Authority Police Department," demonstrated constructive acquiescence in the atmosphere of sexual harassment. (Pl. Memo. at 70). Specifically, she has presented extensive and detailed evidence regarding the widespread and persistent use of sexually offensive language by Gaines, as well as his display of pornographic material. A factfinder could reasonably conclude that these actions constituted "a custom or usage with the force of law." Monell, 436 U.S. at 691. Moreover, based on the evidence presented by plaintiff, a jury could infer that high-level policy makers were not only aware of the problem of sexual harassment and discrimination but opted to condone, rather than remedy, the problem. The evidence presented includes the decision to promote defendant Gaines during the pendency of the EEO investigation, the manner in which the investigation was conducted, and the ultimate decision to exonerate both defendants Gaines and Fong and to appoint Fong as head of the EEO Unit. Thus, even if plaintiff cannot prove a long-standing official practice of the Housing Police, see Pembaur v. City of Cincinatti, 475 U.S. at 480-81, there is sufficient evidence from which a jury may infer an official policy from the decision of the final policymaker in the agency. See Rookard v. Health Hospital Corp., 710 F.2d 41, 45 (2d Cir. 1981) (holding that "[w]here an official has final authority over significant matters involving the exercise of discretion, the choices he makes represent government policy").

As an additional basis for municipal liability, plaintiff has also proffered sufficient evidence to raise a triable issue regarding the Housing Police's failure to adequately train and supervise its officers in the face of the alleged practices of sexual harassment and discrimination. In particular, she claims that the Housing Police failed to provide both adequate training in order to prevent sexual harassment in the first instance and sufficient investigatory mechanisms to effectively respond to claims of sexual harassment.

Defendants, however, contend that plaintiff has failed to state a viable claim against the Housing Police based on the requirements discussed in Walker v. City of New York, 974 F.2d at 297-98. They claim that the Housing Police's "stated policies are explicitly non-discriminatory," Carrero v. New York City Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989) (denying municipal liability against the Housing Authority in sex discrimination case stemming from conduct taken by plaintiffs immediate supervisor, the director of maintenance operations), and that Valentin has failed to present evidence to show that the actions taken during the course of the EEO investigation constituted "deliberate indifference."

In Carrero, the Second Circuit ruled that "[a]lthough [plaintiff's immediate supervisor] exercised some discretion in training and evaluating Carrero, `discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.'" Id. (quoting Pembaur, 475 U.S. at 482). By contrast, Valentin's claims embrace the conduct of her immediate supervisor as well as that of Chief Taylor.

This Court disagrees. If plaintiff can establish that the sexual harassment was as widespread within PSA #4 as she alleges, then the threeWalker elements are satisfied. At this stage, this Court finds that plaintiff has presented sufficient evidence to raise a question of fact as to whether the defendant Housing Police did provide adequate training. Such an issue cannot be resolved on a motion for summary judgment. Accordingly, viewing the totality of evidence in the light most favorable to plaintiff, this Court denies defendants' motion for summary judgment as to the Housing Police under Monell.

III. MOTION TO PRECLUDE PLAINTIFF'S EXPERT TESTIMONY

Defendants have moved in limine to exclude the testimony of plaintiff's expert, Dr. Stephen Leinen. Plaintiff has retained Dr. Leinen to testify in the areas of: 1) sexual harassment and gender and sexual discrimination against women police officers; 2) retaliation against officers who violate the "code of silence;" 3) specific incidents of retaliation against the plaintiff; 4) the quality of the investigation conducted into plaintiffs claims; and 5) sexual harassment training by the Housing Police. Defendants contend that Dr. Leinen is not qualified to testify as an expert on any of these subjects, nor is his testimony admissible because it consists of what are essentially legal conclusions, arguments or judgments that should be left to the jury. Finally, defendants argue that, on balance, the risks of prejudice and jury confusion substantially outweigh the probative value of the expert's testimony and the testimony should be excluded. For the reasons set forth below, defendants' motion is denied in part and granted in part.

A. Expert Testimony

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Fed.R.Evid. 702. Rule 702 makes it clear that there are two prerequisites that must be met before the testimony of an expert witness can be admitted into evidence. First, the trial court must ensure that the witness is properly qualified as an expert to testify on matters that are scientific, technical or specialized in nature, Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81 (2d Cir. 1997); and second, the trial court must determine that the expert's testimony will assist the trier of fact in understanding the evidence or determining an issue of fact. United States v. One Parcel of Property Located at 31-33 York Street, Hartford, Conn., 930 F.2d 139, 141 (2d Cir. 1991) (excluding expert testimony that would only complicate, not assist, the jury's decision "on a simple question for which the jury needed no help"). In short, the trial court must ensure that any and all expert testimony offered at trial is not only reliable but also relevant. Textron, Inc. v. Barber-Coleman Co., 903 F. Supp. 1546, 1552 (W.D.N.C. 1995) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).

The question of qualification is for the trial judge to resolve and the court has "broad discretion" in making that determination. McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1138, n. 7 (2d Cir. 1979). See, e.g., United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985) (noting that "[t]he words `qualified as an expert by knowledge, skill, experience, training, or education' must be read in light of the liberalizing purpose of the Rule"), cert. denied, 475 U.S. 1141 (1986); McCullock v. H.B. Fuller Co., 981 F.2d 656, 657 (2d Cir. 1992). Accordingly, in determining whether an expert possesses the requisite qualifications, "[l]iberality and flexibility in evaluating qualifications should be the rule [and] the expert should not be required to satisfy an overly narrow test of his own qualifications." Lappe v. American Honda Motor Co., 857 F. Supp. 222, 226 (N.D.N.Y. 1994), aff'd, 101 F.3d 682 (2d Cir. 1996). However, the expert must also be reasonably confined to his subject of expertise and further prohibited from offering an expert opinion on an entirely different field or discipline. Id. at 227 (citing Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991)).

In considering a witness's practical experience and educational background as criteria for qualification, the only matter the court should be concerned with is whether the expert's knowledge of the subject is such that his opinion will likely assist the trier of fact in arriving at the truth. United States v. Barker, 553 F.2d 1013, 1024 (6th Cir. 1977) (noting that an expert need not have certificates of training nor memberships in professional organizations, nor be an outstanding practitioner in the field in which he professes expertise); Mannino v. Int'l Mfg. Co., 650 F.2d 846, 850 (8th Cir. 1981) (noting that an expert need not have complete knowledge about the field in question, nor be certain) (citing 3 Weinstein's Evidence, Jack B. Weinstein Margaret A. Berger, at 702-10 (1980)); In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1223, 1242 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied, Lombardi v. Dow Chemical Co., 487 U.S. 1234 (1988).

Accordingly, one may become qualified as an expert based on practical experience; professional education is not a prerequisite. See, e.g.,United States v. Angelilli, 660 F.2d 23, 39-40 (2d Cir. 1981) (holding that experienced auctioneers, buyers and former marshals properly testified as experts on custom and practice at auctions of property);Circle J Dairy, Inc. v. A.O. Smith Harvestore Prod. Inc., 790 F.2d 694, 700 (8th Cir. 1986) (qualifying a witness, who was not a veterinarian and had no advanced educational degrees, to testify as an expert on damage to cattle because he had significant practical experience with health problems in cattle); Fox v. Dannenberg, 906 F.2d 1253, 1255-57 (8th Cir. 1990) (holding that the lower court committed reversible error when it rejected the testimony of engineers who had no training or education in medicine, but had 20 years experience in accident reconstruction and who investigated a car accident and would testify that the survivor was driving). As the Eighth Circuit explained, Rule 702 "does not rank academic training over demonstrated practical experience." Circle J Dairy, Inc. v. A.O. Smith Harvestore Products. Inc., 790 F.2d at 700.

Similarly, formal education may also suffice to qualify a witness as an expert in a particular field, and the lack of extensive practical experience directly on point does not necessarily preclude the expert from testifying. As the Tenth Circuit explained, "[w]here an expert has the education or background to permit him to analyse a given set of circumstances, he can through reading, calculations, and reasoning process from known scientific principles make himself very much expert in the particular product even though he has not had actual practical experience in its manufacture." Gardner v. General Motors Corp., 507 F.2d 525, 528 (10th Cir. 1974) (holding that engineering professors were properly permitted to express opinions about design defects in truck exhaust system even though they had no actual practical experience in the product). See also Baumholser v. Amax Coal Co., 630 F.2d 550 (7th Cir. 1980) (in action alleging that mine blasting operation damaged plaintiffs home, holding that geologist with expertise in shock waves was properly permitted to testify even though he had little actual experience in the study of blasts from coal mining operations); United States v. Viglia, 549 F.2d 335 (5th Cir.), cert. denied, 434 U.S. 834 (1977) (holding that the trial court did not abuse its discretion in permitting a pediatrician who did not treat obesity to testify as expert that drugs prescribed by defendant did not have a legitimate medical purpose in treating obesity, where the trial court found the witness's medical training and education in medicine and pharmacology provided a sufficient predicate for his qualifications as an expert).

Moreover, while the threshold issue of whether a particular witness qualifies as an expert is one for the judge to determine, it is for the jury to decide what weight should be given to that testimony. Fox v. Dannenberg, 906 F.2d at 1256. Thus, any challenges to an expert's skill, knowledge or credibility go to the weight, not the admissibility of the testimony. McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d at 1138, n. 7. The fact that a witness's qualifications are not unassailable does not mean the witness is incompetent to testify; "[r]ather `it is . . . for the jury, with the assistance of vigorous cross-examination, to measure the worth of the opinon[s].'" Fox v. Dannenberg, 906 F.2d at 1256 (quoting Singer Co. v. E.I. Du Pont de Nemours Co., 579 F.2d 433, 443 (8th Cir. 1978)). Once the determination is made that a witness is properly qualified as an expert by training and experience, the weight to be accorded his testimony is a matter for the jury to decide. See United States v. Brown, 604 F. Supp. 411, 413 (S.D.N Y 1985); see also Compton v. Subaru of America. Inc., 82 F.3d 1513, 1520 (10th Cir.), cert. denied, 117 S.Ct. 611 (1996) (holding that the testimony of an expert witness was admissible, where the district court found that the witness's testimony met the requirements for admission under Rule 702), even though the district court had also stated that it had an "extremely low opinion" of the witness's "credibility and of the validity of his opinions").

Indeed, courts have held that any "`doubts about whether an expert's testimony will be useful should be resolved in favor of admissibility.'"Larabee v. M M L Int'l Corp., 896 F.2d 1112, 1116, n. 6 (8th Cir. 1990) (quoting 3 Weinstein's Evidence, ¶ 702[02] (1987)). In keeping with the liberalizing purpose of Rule 702, "expert witnesses may give their opinions, even as to the ultimate issue in a case, so long as there are `sufficient facts already in evidence or disclosed by the witness as a result of his [or her] investigation to take such [expert opinion] testimony out of the realm of guess work and speculation.'" Hurst v. United States, 882 F.2d 306, 311 (8th Cir. 1989) (citation omitted). Only if the expert testimony is so "`fundamentally unsupported that it cannot help the factfinder" should a trial court exclude an expert opinion. Id. (citation omitted). Assuming a witness is qualified as an expert, his testimony can be admitted into evidence if it will assist the trier of fact to understand the evidence, or to determine a fact in issue. Fed.R.Evid. 702. Conversely, if the issues in the case are ones that jurors can understand and evaluate through their own knowledge and experience, expert testimony is not needed and should be excluded. See, e.g., Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962); United States v. Boissoneault, 926 F.2d 230, 232-34 (2d Cir. 1991) (holding that an expert should not draw a conclusion that the jury could just as easily reach based on its own knowledge or experience); Andrews v. Metro North Commuter R.R. Co., 882 F.2d 705, 707-09 (2d Cir. 1989) (holding that the district court erred in allowing a forensic engineer to testify on matters that were neither scientific nor beyond jury's ken). But see United States v. Brown, 776 F.2d at 400 (holding that because undercover officer "knew a good deal more about street narcotics deals in Harlem than did the jurors," his testimony regarding a pattern of conduct often found in narcotics cases would assist the jury).

Just as the expert witness should not be permitted to resolve a factual question that the jury could resolve on its own, neither should the expert witness be allowed to invade the province of the jury by offering "conclusions as to the legal significance of various facts adduced at trial." Marx Co. v. Diners' Club. Inc., 550 F.2d 505, 510 (2d Cir.),cert. denied, 434 U.S. 861 (1977). Moreover, the expert witness should not be permitted to usurp the role of the judge. See Breezy Point Coop. v. CIGNA Property Casualty Co., 868 F. Supp. 33, 36 (E.D.N Y 1994) (noting that "[e]ven if there exists no danger of misleading a jury `adopting outright a legal conclusion proffered by an expert witness,' testimony regarding applicable legal standards remains `objectionable by communicating a legal standard — explicit or implicit — to the jury'") (quoting Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992)). Nor should he be allowed to adopt the role of counsel. See In re Air Crash Disaster at New Orleans, Louisiana, 795 F.2d 1230, 1233 (5th Cir. 1986) (noting that "trial courts must be wary lest the expert become nothing more than an advocate of policy before the jury" and that "the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument").

Indeed, not all proffered expert testimony should be admitted. The trial court "may, in its discretion, refuse to entertain expert testimony it thinks unhelpful, cumulative, confusing to the jury, or more prejudicial than probative." In re Air Disaster at Lockerbie, Scotland, 37 F.3d 804, 824 (2d Cir. 1994), cert. denied, 115 S.Ct. 934 (1995) (citing 3 Weinstein's Evidence, ¶ 702[02] (1993)). Thus, even if expert testimony would be helpful in resolving an issue in the case, it may be unfairly prejudicial to one side and thus should be excluded under Fed.R.Evid. 403. See United States v. Long, 917 F.2d 691, 702 (2d Cir. 1990) (holding that "generalized" expert testimony "not directly related to the case at hand" about the methods used by organized crime was only marginally relevant and highly prejudicial and should have been excluded). Again, trial courts have wide discretion in deciding whether to admit expert testimony based on all of the foregoing. F.H. Krear Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1257-58 (2d Cir. 1987).

B. The Qualifications of Dr. Leinen

Dr. Leinen's Curriculum Vitae and Expert Report details considerable academic and professional experience with various police matters. (See Plaintiff's Response to Defendant's Rule 3(g) Statement, Exhs. S T, respectively). Dr. Leinen was a member of the NYPD for roughly twenty-three years. He joined the NYPD in 1966 and was initially assigned as a patrol officer. He became a detective in 1969, and thereafter steadily advanced through the ranks; he was promoted to Sergeant in 1981 and Lieutenant in 1985. Before his retirement in 1988, he had served as a detective or uniformed desk officer in five different precincts.

Whiles serving in the NYPD, Dr. Leinen earned both a B.A. and an M.A. in Sociology from Queens College, City University of New York. Following his retirement, he earned a Ph.D. in Sociology/Criminology from New York University. He has published two books, entitled Black Police, White Society (New York University Press 1984) and Gay Cops (Rutgers University Press 1993). Dr. Leinen currently works full-time as an assistant professor of sociology and criminal justice at Manhattan College, where he teaches courses in sociology, criminology, criminal investigations, police in society, minorities in policing, and issues in law enforcement. He has also served as an adjunct professor with the Metropolitan Studies Department at New York University for the past eleven years and as an advisor/mentor to police officers at Empire State College, State University of New York for the past eight years. Between 1978 and 1990, he served as an adjunct lecturer in the Sociology Department of Queens College, where he taught courses in sociology, criminology, and criminal justice.

Plaintiff has offered the testimony of Dr. Leinen on several topics: (1) the practice of harassment and discrimination within the NYPD and Housing Police based on sex and sexual orientation; (2) the practice of retaliation against officers who violate the "blue wall of silence" or police "code of silence;" (3) specific incidents of retaliation suffered by Valentin; (4) the adequacy of the sexual harassment training provided to officers; and (5) the adequacy of the investigations conducted by Valentin's superior officers and by the EEO unit. This Court will consider his academic and professional qualifications to testify on each of these matters, and whether his testimony on each of these issues would assist the trier of fact without causing undue prejudice to the defendants.

C. Dr. Leinen's Proposed Testimony on Harassment and Discrimination Based on Sex and Sexual Orientation Within the NYPD and the Housing Police

Plaintiff proposes that Dr. Leinen be permitted to testify about harassment and discrimination based on sex and sexual orientation within the NYPD and the Housing Police. Defendants object, arguing that Dr. Leinen is not qualified to testify about issues of sexual harassment and gender bias in the Housing Police because he "has absolutely no academic credentials in the fields of sexual harassment or gender discrimination." (Defendants' Reply Memorandum of Law in Support of the Motion in Limine ("Defts. Leinen Reply Memo." at 11). They further submit that Dr. Leinen's opinions are "based exclusively on anecdotes and hearsay, rather than the kind of objective studies on which social scientists reasonably rely." (Id. at 14). They also contend that sexual harassment and gender discrimination are issues that an average juror can evaluate and understand without the assistance of an expert.

On the threshold issue of Dr. Leinen's qualifications to testify as an expert on the issues of sexual harassment and gender discrimination, this Court notes that Dr. Leinen has earned three academic degrees in sociology, written two books exploring issues relating to black and gay police officers, and taught courses in sociology, criminology, law enforcement, criminal investigation, police in society, and minorities in policing at several universities over the past eleven years. His curriculum vitae is silent on whether he has had any formal academic training in the specialized areas of harassment and discrimination on the basis of sex or sexual orientation. However, in addition to his formal academic training, Dr. Leinen has spent a large portion of his working life as a member of the NYPD and has acquired practical knowledge of behavioral and cultural norms of New York City police officers and institutions. Since Rule 702 makes it clear that a witness can qualify as an expert through practical experience in a particular field, as well as through academic training, the question is whether Dr. Leinen's formal educational training, coupled with his extensive experience and familiarity with the practices of police officers generally, is sufficient to allow him to "make himself very much the expert" in the subject such that he should be permitted to testify. Gardner v. General Motors Corp., 507 F.2d at 528.

Defendants argue that like the plaintiffs' experts in Eagleston v. Guido, 41 F.3d 865 (2d Cir. 1994), cert. denied, 116 S.Ct. 53 (1995) and Lipsett v. University of Puerto Rico, 740 F. Supp. 921 (D.P.R. 1990), Dr. Leinen's qualifications are not sufficient to qualify him as an expert on the matters of sexual harassment and gender discrimination. In Eagleston v. Guido, the district court refused to qualify the plaintiffs witness as an expert who could testify that the Suffolk County Police Department should have adopted various training and supervision measures when shifting its practice from mediation to arrest in cases of domestic violence. 41 F.3d at 874. The Court of Appeals held that the district court acted within its discretion in finding that the witness was not an expert in either criminology or domestic violence, noting that the witness's degree in sociology was "a credential that does not in itself describe any specific body of scientific or technical expertise pertinent to this case" and that the witness had no familiarity with arrest practices in New York or with the Suffolk County Police in particular.Id.

Similarly, in Lipsett v. University of Puerto Rico, the plaintiff sought to qualify two experts, a social worker and a social psychologist, to testify on the issue of sexual harassment within the working environment of the University of Puerto Rico Medical School Surgery Program. The district court declined to qualify either expert, finding that since they apparently spent "substantially all of [their] time consulting with attorneys and testifying in trials," their testimony lacked the "professional safeguards ensuring objectivity." 740 F. Supp. at 924. The court also emphasized that because the witnesses "have not received medical training and have not experienced the life and working environment at the UPR School of Medicine General Surgery Program . . . . [t]heir testimony would therefore not assist the jure in any way." Id. at 925.

By contrast, Dr. Leinen's extensive academic background is relevant to the issues in this case, in that he has broadly studied, taught, and written on issues related to police culture and bias. Moreover, Dr. Leinen bases his proposed testimony on practical experience gained from over twenty years of service in the NYPD. As a long-standing police officer who served variously as a patrolman, detective, supervisor and commander in five different precincts, Dr. Leinen personally observed the institutional practices and culture that are relevant to plaintiff's claims. Moreover, Dr. Leinen's observations are not solely rooted in the past; as an advisor and mentor to police officers at Empire State College, Dr. Leinen remains in touch with current police practices and norms. Finally, there has been no evidence presented that would lead this Court to question the objectivity of Dr. Leinen as an expert, or to suggest that he may be an "[e]xpert `whose opinions are available to the highest bidder.'" Id. at 924 (quoting Air Crash Disaster at New Orleans, Louisiana, 795 F.2d at 1234).

Accordingly, having carefully considered Dr. Leinen's formal academic credentials, scholarly research and practical experience, this Court finds Dr. Leinen qualified to testify as an expert on sexual harassment, gender bias or sexual discrimination. However, this Court must still determine if Dr. Leinen's testimony would be helpful to the trier of fact on these specific issues.

In order to prevail on her claim for sexual harassment, plaintiff must prove, by the "totality of the circumstances," the existence of a working environment which is "so infused with hostility towards members of one sex that they alter the conditions of employment for that sex." Meritor Savings Bank v. Vinson, 477 U.S. at 66. Plaintiff argues that Dr. Leinen should be permitted to educate the jury about "institutional sexism and homophobia" within the "police culture," and about the quality of the institutional response to complaints like those raised by the plaintiff (Pl. Memo. at 81-82).

While the exact scope of Dr. Leinen's testimony on these subjects is not clear, it is undisputed that Dr. Leinen can shed no light on Valentin's particular work environment within the Housing Police because he was not present when the specific incidents allegedly occurred. Moreover, to the extent that prior, unrelated incidents of sexual harassment and gender bias in the police force are even relevant to this lawsuit, this Court finds that expert testimony describing such incidents would not assist the jury in understanding the evidence or in determining an issue of fact in this case. The trial court "may, in its discretion, refuse to entertain expert testimony it thinks unhelpful, cumulative, confusing to the jury, or more prejudicial than probative." In re Air Disaster at Lockerbie, Scotland, 37 F.3d at 824.

Nor should Dr. Leinen be permitted to opine that the environment within police departments generally is so hostile to women or lesbians that it altered the conditions of Valentin's employment, as such testimony would clearly usurp the role of the jury as factfinder. See Lipsett v. University of Puerto Rico, 740 F. Supp. at 925 (observing that whether plaintiff suffered a hostile work environment is an issue that "does not lend itself to expert testimony because it deals with common occurrences that the jurors have knowledge of through their own experiences in everyday life and their attitudes toward sexual matters" and concluding that the experts' testimony "would not bring to the jury anything more than the lawyers can offer in argument").

In Lipsett, however, the court buttressed its exclusion of plaintiffs proposed expert testimony on the hostile work environment issue by noting that doctors and nurses who shared the daily work environment at issue had already testified as fact witnesses about their personal experiences. Accordingly, the court held that "[w]e do not need an expert beyond what they have already testified to." Id. at 925. By contrast, this Court is persuaded that this case may be distinct in that the particular nature of police culture may make it more difficult for plaintiff to find witnesses willing to breach the "code of silence" and testify as fact witnesses about their personal experiences involving harassment.

Thus, while this Court agrees that, generally, sex and sexual orientation discrimination and harassment are all issues that a jury can evaluate based on their own life experiences without the assistance of an expert, this Court finds that Dr. Leinen's testimony on these issues in the context of a New York City police culture will be relevant and will assist the jury in evaluating the testimony in the case. See Needy v. Village of Woodridge, 96 Civ. 5188 (Conlon, J.) (1997 WL 461093, *5 (M.D. Ill. Aug. 8, 1997) (denying defendant's motion for summary judgment in a hostile work environment case brought by the plaintiff against the police department, where plaintiff, in addition to providing evidence of specific incidents of harassment, "also produced an expert witness who is prepared to testify that the Woodridge Police Department has a custom and policy of sexual harassment that adversely affected [plaintiffs] employment" and "that administrators either ignored the problems or did not provide adequate sex harassment training").

Defendants argue that whatever probative value this evidence may have is substantially outweighed by its prejudice. Defendants have, however, failed to specify what this alleged prejudice is, except to argue that the jury may be misled by the witness's credentials as a "retired NYPD lieutenant who holds a Ph.D.," into believing that his observations at the NYPD have any bearing on events transpiring within the Housing Police. (Defendants' Memorandum of Law in Support of the Motion in Limine ("Defts Leinen Memo.") at 16, 18). This Court finds that on the limited areas in which Dr. Leinen will be permitted to testify, the probative value outweighs the prejudice cited by defendants.

Thus, subject to a hearing on the issues to be covered in his testimony, Dr. Leinen will be permitted to testify about sex and sexual orientation harassment and discrimination in the NYPD or the Housing Police.

D. Dr. Leinen's Proposed Testimony on retaliation Against Officers Who Violate "Code of Silence"

Plaintiff also seeks to introduce testimony by Dr. Leinen on the subject of retaliation against police officers who speak out against the practices of the police department and violate the "code of silence." Defendants maintain that Dr. Leinen is not qualified to testify as an expert in this area, because he has not conducted any studies on the code of silence and because his opinions "rest solely on anecdotal observations and personal discussions from his tenure at NYPD, supplemented with his `experiences at the Women in Policing Conferences.'" (Defts. Leinen Memo. at 16-17 (citing Expert Report of Professor Stephen Leinen, dated October 30, 1995 ("Expert Report"), at 11-13)). Defendants also claim that Dr. Leinen's opinions are unreliable, since he has never compared the NYPD with other work settings, such as the Housing Police, to determine whether the code of silence applies outside of the NYPD. (Id. at 17). Defendants further argue that Dr. Leinen's testimony about the code of silence I both irrelevant and prejudicial because jurors are "amply equipped to evaluate the credibility of witnesses without expert assistance." (Id. at 17-18).

The mere fact that an expert's opinions are not based on formal studies does not make the opinions inadmissible. Rule 703 of the Federal Rules of Evidence delineates the bases upon which an expert may rely in testifying. Specifically, it provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Fed.R.Evid. 703. Accordingly, experts need not have firsthand knowledge to testify on a given issue "if it is of a type reasonably relied on by experts in the field." Fed.R.Evid. 703. As Judge Jack B. Weinstein explained in In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1243 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988):

Rule 703 permits experts to rely upon hearsay. The guarantee of trustworthiness [of the hearsay] is that it be the kind normally employed by experts in the field. The expert is assumed, if he meets the test of Rule 702, to have the skill to properly evaluate the hearsay, giving it probative force appropriate to the circumstances.

See also Kingsley Assocs. v. Del-Mart, Inc., 918 F.2d 1277, 1286 (6th Cir. 1990) (holding that it was error to exclude expert testimony based on hearsay).

Dr. Leinen, then, can use the statements of other police officers, as well as his own experiences in the police force, to form the opinion that the "code of silence" dictates retaliation against officers who bring discrimination complaints against their superiors or colleagues. See Ariza v. City of New York, 93 CV 5287 (CPS), 1996 WL 118535 (E.D.N.Y. Mach 7, 1996) (allowing the plaintiff to introduce the testimony of experts and fellow police officers on the effect of the "blue wall of silence" when officers speak out and subject the police department to public scrutiny). The original Advisory Committee's Notes on Fed.R.Evid. 703 specifically state that an expert can rely both on personal observation and "presentation of data to the expert outside of court and other than by his own perception." Rule 703 Advisory Committee Notes. This Court finds that Dr. Leinen's "innumerable conversations with members of the New York City's three (3) police agencies, both male and female, active and retired," (Expert Report at 3) which he conducted over twenty-three years of active police service and twenty years of scholarly research on the police, constitute anecdotal "data . . . of a type reasonably relied upon by experts in forming opinions or inferences . . . ." Fed.R.Evid. 703. This Court notes that Dr. Leinen, as not only a veteran police officer of over two decades but also a trained sociologist with three academic degrees and a specialty in observing the police, possesses particular skills in developing sound opinions or inferences from anecdotal or oral data. Moreover, defendants can cross-examine Dr. Leinen regarding his reliance on the observations and statements made to him by others.

This Court finds, therefore, that Dr. Leinen is qualified to testify as an expert on the practice of retaliation against officers who violate the "code of silence." This Court also believes that Dr. Leinen's testimony is relevant and will assist the trier of fact in determining a fact in issue. Specifically, Valentin alleges that her First Amendment rights were violated when she was subjected to retaliation following her efforts to seek redress for her complaints of harassment. As part of that claim, plaintiff must show that her complaints of discrimination and harassment were the substantial causal or motivating factor for the actions taken by defendants. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. at 283-87; Blum v. Schlegel, 18 F.3d at 1010. Dr. Leinen's proposed testimony is relevant to the issue of whether there was a causal connection between plaintiff's complaint of discrimination and harassment and any allegedly adverse employment actions taken against her. Expert testimony as to the existence of any custom or practice of retaliation in order to suppress speech such as Valentin's complaints about Gaines would be relevant to establishing that causal connection. Dr. Leinen's testimony on the "code of silence," if believed by the jury, would be sufficient to support an inference that there is a policy or a practice of retaliating against officers who press complaints against their fellow officers. Dr. Leinen's testimony would also be relevant in demonstrating that this policy or practice was the proximate cause of plaintiff's injury. See Eagleston v. Guido, 41 F.3d at 878.

The admission of testimony regarding the "blue wall of silence" and the practice of retaliation by fellow officers against those who violate this code was recently approved by this court in Ariza v. City of New York, 93 Civ. 5287 (CPS), 1996 WL 118535 (E.D.N.Y. March 7, 1996). There, an officer in the NYPD sued the Department under Section 1983, alleging violations of his First and Fourteenth Amendment rights to free speech when he was subjected to retaliation by fellow officers after he complained about what he perceived to be preferential treatment afforded to the members of the Hasidic community. Id. at *1. In support of his claim, plaintiff produced the testimony of experts and of fellow officers who suffered similar retaliation, along with the July 7, 1994 report of the Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Practices of the Police Department ("the Mollen Commission Report"). Id. at *2. Although defendants in Ariza argued that the Mollen Commission Report did not suggest that the "code of silence" exists to repress the exercise of free speech, the court found that "the principle behind the `blue wall of silence' is that officers will suffer recrimination for breaking ranks and subjecting police conduct to public scrutiny." Id. at *5, Defendants attempted to distinguish the Mollen Commission Report by arguing that it does not suggest that the "code of silence" discourages officers from exercising their First Amendment rights to speak out against preferential treatment of certain community groups. Id. In rejecting that argument, the court emphasized that the "testimony of officers and experts alike [demonstrates] that the code of silence operates to discourage others from making public the wrongful acts of fellow officers." Id. at 6 (emphasis added). But cf. Domenech v. City of New York, 919 F. Supp. 702, 711 (S.D.N.Y. 1996) (in a sex discrimination case, noting that "no reasonable finder of fact could deem [the Mollen Commission Report] to demonstrate a culture of retaliation for non-criminal activity such as discrimination so pervasive as to constitute a custom or usage amounting to tacit NYPD policy").

According to the Mollen Commission Report, a "code of silence" or "blue wall of silence" operates to shield corrupt officers and discourage honest officers from reporting that corruption. Id. at *3. The Report explicitly detailed examples of retaliation against complaining officers who were perceived as "rats." Id.

Here, Valentin does not seek to admit the Mollen Commission Report itself Rather, she seeks to have her expert testify as to the application of the "code of silence" to officers who complain about misconduct of their fellow officers — whether it be corruption, preferential treatment, or as in this case, sexual discrimination and harassment. Plaintiff has presented sufficient evidence, if believed, to suggest that retaliatory acts were taken against her in response to her complaints about the sexual harassment she experienced in her unit. To the extent that Dr. Leinen's testimony proposes to explain the phenomenon of the "code of silence" and its operation in this context, this Court finds that the testimony is relevant and will be helpful to the jury. Moreover, this type of evidence is particularly relevant to plaintiffs Monell claims of custom and usage against the municipality. See White-Ruiz v. City of New York, 93 Civ. 7233 (MHD), 1996 WL 603983 *8-10 (S.D.N.Y. Oct. 22, 1996) (in police corruption case, denying defendants' motion for summary judgment where plaintiff offered sufficient evidence that the "`blue wall of silence' constitutes a custom or usage of the Department").

Although defendants argue that Dr. Leinen's experience was in the NYPD and not the Housing Police, that fact alone does not provide a basis for excluding his testimony on any of the relevant issues in this case. Plaintiff asserts, and defendants have not disputed, that the chiefs of the Housing Police come from the command structure of the NYPD and that there is considerable interchange of personnel between both agencies. Morever, there is clearly some interrelationship between the two agencies, as demonstrated by their recent consolidation. In any event, to the extent that there are any significant relevant differences between the policies and practices of the NYPD and the Housing Police, these differences go not to the admissibility of Dr. Leinen's testimony, but rather to the weight given by the factfinder to this testimony. See United States v. Brown, 604 F. Supp. at 413; Compton v. Subaru of America. Inc., 82 F.3d at 1520. It should be left to the jury to evaluate the credibility and reliability of Dr. Leinen's position that "the distinction [between the NYPD and the Housing Police] is insignificant when defining and describing police culture and biases in New York City police service because the training, policies, procedures, practices, and composition of each department is inherently the same." (Leinen Report at 3, n. 2).

Since the parameters of Dr. Leinen's testimony relating to police culture and the "code of silence" have not been clearly defined by plaintiff but described only generally, this Court will allow the parties to explore further the nature and extent of the expert's proposed testimony prior to trial. Only then will this Court be in a position to fully evaluate the probative value of the proffered testimony. See United States v. Long, 917 F.2d at 702-03 (holding that prejudice caused by admission of generalized information not directly related to the case at hand could not be blunted by cross-examination and district court should have made greater inquiry into relevancy of testimony regarding hierarchy, jargon and general criminal activities of organized crime families).

E. Dr. Leinen's Proposed Testimony About Specific Acts of Harassment and retaliation

In his report, Dr. Leinen opines about several alleged incidents of retaliation taken by the Housing Police against plaintiff Valentin. He notes that "Gaines [sic] viewing of the [pornographic] video in the apartment in the presence of Valentin is consistent with patterns of sexual harassment and/or retaliation that I have either witnessed or personally heard about;" that Gaines's request that Valentin apply for a search warrant even though she was not acquainted with the case "is consistent with a pattern of harassment;" and that "[n]ot to give a subordinate an opportunity to correct any alleged shortcomings [before issuing an evaluation] is consistent with a pattern of harassment and discrimination." He also proffers the opinion that "Gaines gave Valentin a mediocre evaluation as both retaliation against Valentin's complaints of improper sexual conduct and as a paper trail that would ultimately impede Valentin's chances for advancement within the Department." (Expert Report at 13-15).

The Federal Rules of Evidence provide that a qualified expert may testify as to inferences to be drawn from the facts, including inferences relating to the ultimate issue in the case. Fed.R.Evid. 702, 704(a).See United States v. Boissoneault, 926 F.2d at 231. Rule 704 specifically allows an expert witness to offer an opinion about an ultimate issue to be decided by the trier of fact. However, testimony that embraces an ultimate issue should not be admitted when it contains a legal conclusion that "`convey[s] the witness's unexpressed, and perhaps erroneous, legal standards to the jury.'" Andrews v. Metro North Commuter R.R., 882 F.2d at 709 (quoting Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985). Thus, the Second Circuit has generally not permitted experts to render an ultimate opinion when the opinion is couched as a legal conclusion. See, e.g., In re Air Disaster at Lockerbie Scotland, 37 F.3d at 827 (finding that an airline security expert who stated his personal conclusion that airline had violated safety regulations "crossed the fine line between a permissible conclusion as to an ultimate issue of fact and an impermissible legal conclusion"); United States v. Scop, 846 F.2d 135, 139 (2d Cir. 1988) (holding that an expert's statements may not invade "'the province of the court to determine the applicable law and to instruct the jury as to that law'") (quoting FAA v. Landy, 705 F.2d 624, 632 (2d Cir.), cert. denied, 464 U.S. 895 (1983)); Marx Co. v. Diners Club, 550 F.2d at 509-10 (stating that "[i]t is not for witnesses to instruct the jury as to applicable principles of law, but for the judge").

Rule 704(a) declares that "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."

This Court sees no problem with having Dr. Leinen testify that certain actions, such as the viewing of pornographic tapes during the course of a search warrant, are not normal police procedures. Dr. Leinen is qualified to make that judgment and his testimony would assist the trier of fact. Even when jurors are well-equipped to make judgments based on their own knowledge and experience, expert testimony can still be helpful by bringing specialized knowledge that could lend support to a jury's inference and generally be helpful to the jury. See United States v. Taylor, 18 F.3d 55, 59-60 (2d Cir. 1994), cert. denied, 114 S.Ct. 2720 (1994) (affirming the trial court's decision to admit the testimony of an expert narcotics officer that large volume of heroin glassines seized in the defendant's apartment was much greater than any he had ever taken from a non-dealer on the theory that his testimony supported an inference that the defendant was not just a mere user, but had the requisite intent to distribute). Here, Dr. Leinen's testimony on deviations from standard police procedures, such as the application for search warrants, the methods employed in executing search warrants, and the evaluation of subordinates, will all be "helpful" because they cover matters "not . . . within the ken of an average juror." Id.

However, it is up to the jury to determine whether these actions constitute sexual harassment. Dr. Leinen's conclusions that these alleged incidents are consistent with a pattern of sexual harassment or retaliation are not admissible. Nor should he be permitted to testify that defendants' actions were without justification and were done to conform to an alleged pattern of sexual harassment and retaliation. See Hygh v. Jacobs, 961 F.2d at 364 (in a Section 1983 action, holding that an expert's opinion that a police officer's conduct was not "justified under the circumstances," and "totally improper" intruded into the jury's domain by telling the jury what conclusion it should reach).

For the reasons stated above, this Court will not permit Dr. Leinen to testify as to whether specific acts taken against the plaintiff constitute retaliation and/or sexual harassment. He may, however, opine on whether specific procedures or actions are consistent with generally accepted police practices.

F. Dr. Leinen's Proposed Testimony on the Investigations into Valentin's Complaint

Plaintiff also proposes that Dr. Leinen be permitted to testify about the quality of the internal precinct investigation and the EEO investigation conducted with respect to plaintiffs complaints. In objecting to the admissibility of this testimony, defendants repeat their earlier argument that Dr. Leinen is not qualified to testify as an expert on the Housing Police and its investigative procedures, because he spent his time exclusively at the NYPD. (Defts. Leinen Memo. at 18-19). They also maintain that "Dr. Leinen's criminal investigation experience [does not] qualify him as an expert in the very different field of conducting an EEO investigation." (Id. at 19). Finally, they argue, here and elsewhere, that Dr. Leinen's opinions lack sufficient certainty to be admissible.

After consideration of all the arguments, this Court believes that Dr. Leinen is qualified to testify about the adequacy of the two investigations into plaintiffs complaints of harassment. It is not dispositive that Dr. Leinen's investigative experience lies primarily in NYPD criminal investigations and not in Housing Police or EEO investigations. Rule 702 recognizes that it is "the actual qualifications of witnesses that matter, rather than titles, by providing that an expert can be qualified by knowledge, skill, experience, training or education." 3 Weinstein's Evidence at 702-61. The fact that a proposed expert may not have the exact qualifications to fit the case does not mean the expert's testimony is automatically inadmissable. If the court finds that the witness's qualifications are sufficiently similar to the issues in the case, the expert is qualified and opposing counsel can use cross-examination to attack any deficiencies in the expert's background.See United States v. Ruffin, 575 F.2d 346, 357 (2d Cir. 1978) (affirming admission of testimony by an attorney as to the meaning of documents related to a title search of property, where the attorney was not admitted to practice in New York but had four years experience with the I.R.S. and with a New York City bank involving title searches); Knight v. Otis Elevator Co., 596 F.2d 84, 88 (3d. Cir. 1979) (permitting an expert on machine guarding to testify in a products liability action involving a machine guard on an elevator, even though he had no experience with elevators).

Through his extensive experience as a police officer, Dr. Leinen has become familiar with and is clearly qualified to testify about proper investigative procedures in general. This Court knows of no reason why generally accepted investigative procedures would not be equally applicable in the context of an EEO investigation into alleged acts of sexual harassment or discrimination and defendants have failed to set forth any basis on which such a distinction should be made.

Moreover, this Court finds that Dr. Leinen's specific objections to the internal precinct investigation conducted by Fong as well as the EEO investigation conducted by Moorehead and Pacinella are of the kind and quality that an expert investigator would make. In particular, Dr. Leinen faults Fong for failing to investigate Gaines's previous assignments and commands for other complaints of sexual harassment or discrimination; failing to conduct and record formal interviews with other women who worked with Gaines; failing to conduct an investigation down through the chain of command to determine what a subordinate officer might uncover and report; and failing to resume investigation after Valentin indicated to him that she continued to suffer harassment and discrimination. Dr. Leinen similarly criticizes the EEO investigators for a raft of shortcomings, including the omission of statements helpful to Valentin's case; the failure to interview Valentin and to afford her the opportunity to respond to the charges that she had incurred excessive absences and tour changes; the failure to sign off on interview sheets; the failure to look into the experiences of other female officers who worked with Gaines; the failure to question Gaines's supervisors and former colleagues; the failure to interview members of the Housing Police Female Association who had personal knowledge of Gaines and had expressed concerns to Chief Taylor about his promotion; the failure to confirm statements made by other officers involved in the investigation; and the failure to conduct a timely investigation.

Dr. Leinen's detailed critique of the two investigations, coupled with his extensive experience as an NYPD investigator, qualifies him to testify as to the sufficiency of both investigations. Since defendants have failed to demonstrate that an EEO investigation is unique and that different investigatory techniques apply, this Court finds that Dr. Leinen is qualified to apply his knowledge of investigative procedures and techniques to this case, even though he has no specific experience with EEO investigations.

Finally, the fact that Dr. Leinen may not be absolutely certain in his opinions affects the weight of his testimony only, not its admissibility.See Mannino v. Int'l Mfg., 650 F.2d at 850 (noting that an expert need not have complete knowledge about the field in question, nor be certain).

Thus, this Court will permit Dr. Leinen to testify about the nature of the Housing Police investigations into plaintiff's claims and any deviations from standard investigative procedures. However, as explained above, Dr. Leinen will not be permitted to opine on whether the manner in which the investigations were conducted demonstrates discrimination or retaliation by the Housing Police.

G. Dr. Leinen's Proposed Testimony on Sexual Harassment Training in NYPD and the Housing Police

Finally, plaintiff seeks to have Dr. Leinen testify on the alleged inadequacy of sexual harassment training in the NYPD and the Housing Police. Defendants argue that Dr. Leinen's opinions on the quality of sexual harassment training are unreliable. This Court agrees.

In his report, Dr. Leinen seems to acknowledge that his opinion on current training is based primarily on statements made to him by his advisees at Empire State College indicating that they view the training as superficial. (See Expert Report at 16-17). This information is not sufficient for an expert to reasonably rely on in forming his opinion. Neither this Court nor the jurors can assess the trustworthiness or the credibility of Dr. Leinen's advisees who will not be testifying. An expert cannot act as a mere conduit for the opinions of other persons. As the Seventh Circuit cautioned, "[d]istrict courts must ensure that expert opinion testimony is in fact expert opinion, not merely opinion given by an expert." United States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987). Accordingly, "expert testimony based solely on hearsay and third-party observations that are adequately comprehensible to lay people would be improper to admit under Rule 702." Id. at 395. See also Ricciardi v. Children's Hospital Medical Center, 811 F.2d 18, 25-26 (1st Cir. 1987) (excluding testimony of a physician that was based on a statement in the hospital chart that was "not the kind of information upon which an expert would reasonably rely in forming an opinion").

This Court finds that Dr. Leinen's showing on the issue of Housing Police training to be inadequate particularly when compared to his extensive showing of anecdotal data and oral commentary on retaliationsee supra at 41-42, in which he relied upon "innumerable conversations with members of the New York City's three (3) police agencies, both male and female, active and retired," (Expert Report at 3), conducted over twenty-three years of active police service and twenty years of scholarly research on the police. By contrast, Dr. Leinen's reliance on an unspecified number of comments by Empire State College trainees does not match, in scope or in time, such an extensive anecdotal record.

Since the statements of Dr. Leinen's advisees are not of "a type reasonably relied upon by experts . . . in forming opinions or inferences . . .," Fed. Rule Evid. 703, this Court finds that these statements should be excluded as a basis for his expert opinion. Furthermore, even if Dr. Leinen has attended numerous training sessions, as he claims, this Court is not satisfied that he qualifies as an expert on sexual harassment or sexual harassment training. Without more, this Court finds that he has no reliable basis for his assertion that "those who conduct training sessions no more believe and support much of the information they pass on than the higher-ups in the Department . . . ." (Expert Report at 17). Thus, this Court will not permit Dr. Leinen to testify about the quality of sexual harassment training conducted by the Housing Police.

IV. CONCLUSION

For the reasons set forth above, this Court respectfully recommends that defendants' motion for summary judgment be denied and that defendants' motion in limine to exclude Dr. Leinen's proposed expert testimony be denied in part and granted in part.

Valentin v. New York City

Summary

Opinion

OPINION

I. FACTUAL BACKGROUND

II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT A. Standards

B. Plaintiff's Claim of Sexual Harassment

C. Plaintiff's First Amendment Claim

D. Plaintiff's Conspiracy Claim

E. Qualified Immunity

F. Plaintiff's Monell Claim Against the Housing Police

III. MOTION TO PRECLUDE PLAINTIFF'S EXPERT TESTIMONY

A. Expert Testimony

B. The Qualifications of Dr. Leinen

C. Dr. Leinen's Proposed Testimony on Harassment and Discrimination Based on Sex and Sexual Orientation Within the NYPD and the Housing Police

D. Dr. Leinen's Proposed Testimony on retaliation Against Officers Who Violate "Code of Silence"

E. Dr. Leinen's Proposed Testimony About Specific Acts of Harassment and retaliation

F. Dr. Leinen's Proposed Testimony on the Investigations into Valentin's Complaint

G. Dr. Leinen's Proposed Testimony on Sexual Harassment Training in NYPD and the Housing Police

IV. CONCLUSION

Valentin v. New York City

Valentin v. New York City

Case Details

Citations

Citing Cases

Valentin v. New York City

Summary

Opinion

OPINION

I. FACTUAL BACKGROUND

II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT A. Standards

B. Plaintiff's Claim of Sexual Harassment

C. Plaintiff's First Amendment Claim

D. Plaintiff's Conspiracy Claim

E. Qualified Immunity

F. Plaintiff's Monell Claim Against the Housing Police

III. MOTION TO PRECLUDE PLAINTIFF'S EXPERT TESTIMONY

A. Expert Testimony

B. The Qualifications of Dr. Leinen

C. Dr. Leinen's Proposed Testimony on Harassment and Discrimination Based on Sex and Sexual Orientation Within the NYPD and the Housing Police

D. Dr. Leinen's Proposed Testimony on retaliation Against Officers Who Violate "Code of Silence"

E. Dr. Leinen's Proposed Testimony About Specific Acts of Harassment and retaliation

F. Dr. Leinen's Proposed Testimony on the Investigations into Valentin's Complaint

G. Dr. Leinen's Proposed Testimony on Sexual Harassment Training in NYPD and the Housing Police

IV. CONCLUSION

Valentin v. New York City

Valentin v. New York City

Case Details

CitationsCopy Citation

Citing Cases

Citations