Johnson v. County of Nassau et al
Filing
84
ORDER granting in part and denying in part 54 Motion for Summary Judgment; granting in part and denying in part 57 Motion for Summary Judgment; finding as moot 66 Motion to Compel; finding as moot 66 Motion to Stay. For the reasons set fo rth herein, the Court grants in part and denies in part defendants' motions for summary judgment. In particular, the Court grants summary judgment to the NCSD as to all claims. As for the Title VII claims, the Court grants summary judgment for a ll individual defendants and denies the County's motion for summary judgment in all respects. As for the Section 1981 and Section 1983 claims, the Court grants summary judgment for all individual defendants except for Gruntorad, against whom pla intiff may pursue a retaliation claim, grants summary judgment for the County with respect to the retaliation claim, and denies the County's motion for summary judgment with respect to the hostile work environment claim. The Court also grants su mmary judgment for the County and all individual defendants except DaSilva on plaintiff's NYSHRL claims. Finally, the Court grants summary judgment for all defendants as to the Title VI, Section 1985(3), Section 1986, and breach of contract claims. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/22/2014. (Gibaldi, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-06061 (JFB)(GRB)
_____________________
RODNEY JOHNSON,
Plaintiff,
VERSUS
COUNTY OF NASSAU, NASSAU COUNTY SHERIFF’S DEPARTMENT, ACTING SHERIFF
MICHAEL J. SPOSATO, DEPUTY ATTORNEY ELIZABETH LOCONSOLO, SERGEANT
JOSEPH KREUTZ, LIEUTENANT BARBARA GRUNTORAD, CAPTAIN ANTHONY ZUARO,
CAPTAIN MICHAEL GOLIO, CORPORAL PATRICK MCDEVITT, AND CORRECTION
OFFICER MANNY DASILVA, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES,
Defendants.
___________________
MEMORANDUM AND ORDER
September 22, 2014
___________________
worker DaSilva on account of plaintiff’s
race (plaintiff is African-American), that the
other defendants (collectively, the “County
defendants”) did not adequately address
DaSilva’s behavior, and that plaintiff was
retaliated against for having complained
about DaSilva’s behavior. Plaintiff brings
the following claims under federal and state
law: (1) hostile work environment under
Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-1 et seq. (“Title VII”), 42
U.S.C. § 1981 (“Section 1981”), 42 U.S.C.
§ 1983 (“Section 1983”), and the New York
State Human Rights Law, N.Y. Exec. Law
§§ 290 et seq. (“NYSHRL”); (2) retaliation
under Title VII, Section 1981, Section 1983,
and the NYSHRL; (3) racial discrimination
by a program receiving federal financial
assistance under Title VI of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000d et seq.
JOSEPH F. BIANCO, District Judge:
Plaintiff Rodney Johnson (“Johnson” or
“plaintiff”) brings this civil rights action
against the County of Nassau (the
“County”), the Nassau County Sheriff’s
Department (“NCSD”), and individual
defendants Acting Sheriff Michael J.
Sposato (“Sposato”), Deputy Attorney
Elizabeth
Loconsolo
(“Loconsolo”),
Sergeant
Joseph
Kreutz
(“Kreutz”),
Lieutenant
Barbara
Gruntorad
(“Gruntorad”), Captain Anthony Zuaro
(“Zuaro”), Captain Michael Golio (“Golio”),
Corporal Patrick McDevitt (“McDevitt”),
and Correction Officer Manny DaSilva
(“DaSilva”), in their official and individual
capacities. The gravamen of the complaint is
that plaintiff, a correction officer in the
NCSD, was harassed constantly by his co1
(“Title VI”); (4) conspiracy under 42 U.S.C.
§ 1985(3) (“Section 1985(3)”); (5) failure to
intervene under 42 U.S.C. § 1986 (“Section
1986”); and (6) breach of contract.
actions, and that defendant has come
forward with legitimate, non-retaliatory
reasons for those actions. The Court further
concludes that plaintiff has raised a triable
issue of fact as to whether his transfer was
due to retaliation, where the County has
explained that it transferred plaintiff to
separate him from DaSilva but has not
offered a reason for transferring DaSilva
instead. As for the formal reprimand,
plaintiff can point to specific evidence (the
reaction of Gruntorad, his supervisor, to his
complaint about his transfer, along with
evidence that plaintiff had not been
disciplined for similar conduct in the past)
that the reprimand would not have occurred
but for retaliatory animus. Accordingly, the
Court denies summary judgment to the
County with respect to the Title VII
retaliation claim. However, the Court grants
summary judgment for the County with
respect to plaintiff’s Section 1981 and
Section 1983 retaliation claims because
there is no evidence of a municipal custom
or policy that caused the retaliation. In
addition, the Court denies Gruntorad’s
motion for summary judgment as to the
Section 1981 and Section 1983 retaliation
claims based on evidence establishing her
personal involvement in the claimed
retaliation. The Court grants summary
judgment to all other individual defendants
with respect to these claims because there is
no evidence that any other individual
defendant participated in the alleged
retaliation. Fourth, the Court grants
summary judgment to all defendants as to
plaintiff’s Title VI claim due to an absence
of evidence showing that the County or
NCSD received federal funding. Fifth, with
regard to the Section 1985(3) and Section
1986 claims, the Court grants summary
judgment to all defendants on the basis of
the intracorporate conspiracy doctrine.
Sixth, the Court dismisses plaintiff’s
NYSHRL claims against the County and all
Before the Court are defendants’
motions for summary judgment. For the
following reasons, the motions are granted
in part and denied in part. First, the Court
grants summary judgment to the NCSD
because the NCSD does not have a legal
identity independent of the County. Second,
the Court denies the summary judgment
motions as to plaintiff’s Title VII hostile
work environment claim against the County
because a reasonable jury could find not
only that DaSilva subjected plaintiff to a
racially abusive working environment, but
also that the County was responsible for this
abusive
working
environment
by
inadequately
addressing
plaintiff’s
complaints about DaSilva’s conduct.
Because there is a reasonable basis to
impute the hostile work environment to the
County, the Court also denies the County’s
motion for summary judgment as to the
Section 1981 and Section 1983 hostile work
environment claims. As for the individual
defendants, the Court grants summary
judgment for all individual defendants as to
the hostile work environment claims
because Title VII does not create individual
liability; DaSilva’s conduct was unrelated to
his job duties, and thus did not constitute
state action for purposes of Sections 1981
and 1983; and no other individual
defendants had the requisite level of
involvement in the creation of a hostile work
environment so as to be held liable under
Sections 1981 and 1983. Third, plaintiff
premises his federal retaliation claims upon
two adverse employment actions: (1) a
transfer to a less favorable position within
the NCSD, and (2) a formal reprimand. The
Court concludes that plaintiff has met his
minimal burden to state a prima facie case
of retaliation with respect to both adverse
2
individual defendants except DaSilva based
upon plaintiff’s failure to file a notice of
claim. Because there is evidence that
DaSilva acted outside the scope of his
employment in creating a hostile work
environment toward plaintiff, no notice of
claim was required for the NYSHRL claims
against him to proceed, there is sufficient
evidence from which a reasonable jury could
hold him liable individually under the
NYSHRL, and the Court denies his motion
for summary judgment as to these claims.
Seventh, and finally, the Court grants
summary judgment to all defendants as to
plaintiff’s breach of contract claim because,
under New York law, an employment
handbook’s anti-discrimination and antiharassment policies may not serve as the
basis for a breach of contract claim.
Plaintiff is an African-American male
and has worked as a Correction Officer for
the NCSD since August 1993. (County 56.1
¶¶ 1–2; DaSilva 56.1 ¶ 1. 2 ) For the first
twelve years of his career, plaintiff was
assigned to the NCSD’s Security Unit.
(County 56.1 ¶ 3; DaSilva 56.1 ¶ 5.) At his
request, plaintiff was reassigned from the
Security Unit to the Rehabilitation Unit, the
unit responsible for maintaining law
libraries and schools in the County jails, on
January 4, 2006. (County 56.1 ¶ 4; DaSilva
56.1 ¶ 6.) Plaintiff served as a drill instructor
for the High Impact Incarceration Program
(“HIIP”) within the Rehabilitation Unit from
January 2006 until July 2007, when the HIIP
was shut down. (County 56.1 ¶ 6; DaSilva
56.1 ¶ 7.) Thereafter, plaintiff was
transferred within the Rehabilitation Unit to
the 832 Law Library. (County 56.1 ¶ 7;
DaSilva 56.1 ¶ 7.)
I. BACKGROUND
A. Facts
Defendant DaSilva, a white male, was
working as a correction officer in the
Rehabilitation Unit at the time plaintiff was
transferred there in January 2006. (County
56.1 ¶ 9; DaSilva 56.1 ¶ 2; Pl.’s Counter
56.1 ¶ 2.)
The following facts are taken from the
parties’ depositions, declarations, exhibits,
and respective Local Rule 56.1 statements of
facts. Upon consideration of a motion for
summary judgment, the Court construes the
facts in the light most favorable to the
nonmoving party. See, e.g., Capobianco v.
City of New York, 422 F.3d 47, 50 n.1 (2d
Cir. 2005). Unless otherwise noted, where a
party’s Rule 56.1 statement is cited, that fact
is undisputed, or the opposing party has not
pointed to any evidence in the record to
contradict it.1
1. November 15, 2007 Memorandum and
Subsequent Investigation
On Friday, November 9, 2007, plaintiff
informed Gruntorad, his supervisor, that he
was experiencing problems with DaSilva,
but that he was unsure whether he wanted to
“pursue this situation.” (County 56.1 ¶ 11.)
Gruntorad told plaintiff “that there was no
place for harassment in the sheriff’s
department,” and that plaintiff should
Although the parties’ respective Rule 56.1
statements of facts contain specific citations to the
record, the Court cites to the Rule 56.1 statement
instead of the underlying citation to the record.
However, the Court disregards all assertions in the
Rule 56.1 statements that are unsupported by the
record. See Holtz v. Rockefeller & Co., Inc., 258 F.3d
62, 73 (2d Cir. 2001) (noting that district court may
1
disregard an assertion in a Rule 56.1 statement that is
unsupported by record).
2
“County 56.1” refers to the Rule 56.1 statement of
facts submitted on behalf of the County defendants.
“DaSilva 56.1” refers to the Rule 56.1 statement of
facts submitted on behalf of defendant DaSilva.
3
“officially bring [DaSilva] up on department
charges” if he was harassing plaintiff, but
that she would give plaintiff the weekend to
decide how to handle the situation. (County
56.1 ¶ 12.) The following Monday,
Gruntorad gave plaintiff a copy of the
NCSD’s anti-harassment and discrimination
Standard Operating Procedure (“SOP”) and
told him that he should file a complaint if
DaSilva had violated the SOP. (County 56.1
¶ 13.) Over the next day or two, plaintiff
conveyed to Gruntorad some specific
allegations of harassment by DaSilva, and
she ordered plaintiff to provide her with a
report of his allegations. (County 56.1 ¶ 14.)
then threatening to ram the spray can
down plaintiff’s throat.3
(Siravo Decl. Ex. B, Memorandum from
Johnson to Gruntorad, Nov. 15, 2007.) None
of the allegations in plaintiff’s November
15, 2007 memorandum concerned racial
animus. (County 56.1 ¶ 16; DaSilva 56.1
¶ 33; see generally Siravo Decl. Ex. B,
Memorandum, Nov. 15, 2007.) Plaintiff has
also testified that DaSilva called him a
“n***** and a monkey” during the
classroom chair incident; however, plaintiff
did not report this statement in his
November 15, 2007 memorandum. (County
56.1 ¶ 17; see Johnson Dep. at 76, 470.)
Complying with Gruntorad’s directive,
plaintiff
filed
an
inter-departmental
memorandum detailing his allegations of
harassment by DaSilva on November 15,
2007. (County 56.1 ¶ 14; DaSilva 56.1
¶ 32.) Plaintiff’s memorandum alleged that
DaSilva committed, inter alia, the following
acts:
Immediately after receiving plaintiff’s
memorandum, Gruntorad ordered the
separation of plaintiff and DaSilva, and
DaSilva’s right to possess a firearm was
revoked. (County 56.1 ¶¶ 18–19; DaSilva
56.1 ¶ 37.) Gruntorad then forwarded
plaintiff’s memorandum to her supervisor,
Zuaro, who forwarded the memorandum to
the Nassau County Equal Employment
Opportunity office (the “County EEO”) for
investigation.4 (County 56.1 ¶ 20; see Siravo
Decl. Ex. C, Memorandum from Gruntorad
to Zuaro, Nov. 16, 2007.)
telephoning plaintiff, saying that
“Johnson is a dead man,” and then
hanging up;
mimicking and mocking plaintiff in
front of inmates;
drawing pictures of plaintiff giving
oral sex to men;
stuffing tree branches in the rims of
plaintiff’s car tires and scratching the
hood of his car;
tailgating plaintiff “honking like a
maniac” while driving to work;
pulling his gun out of his holster
while smiling at plaintiff, and then
tailgating plaintiff while driving;
yelling at plaintiff in a classroom to
get out of his chair, spraying the
chair after plaintiff stood up, and
On November 16, 2007, plaintiff met
with Dr. Joseph Volker (“Volker”), an
affirmative action specialist and the County
EEO’s representative for the NCSD. (See
Pl.’s Counter 56.1 ¶ 157.) Based upon
plaintiff’s inter-departmental memorandum
3
In his deposition, plaintiff testified that these
incidents did, in fact, occur. (See Johnson Dep. at 29–
77.)
4
The County EEO investigates claims of
discrimination and retaliation by employees of the
County. (County 56.1 ¶ 69.) Each department within
the County is assigned a County EEO representative
who investigates complaints made within their
particular department. (Id. ¶ 70.)
4
and information provided to Volker by
plaintiff, Volker completed the County
EEO’s initial intake form and checked off
both race and sexual orientation as the bases
of DaSilva’s harassment. (Id. ¶¶ 157–58;
DaSilva 56.1 ¶ 36.) Volker sent the County
EEO complaint to Mary Elisabeth
Ostermann (“Ostermann”), who was the
director of the County EEO (see Volker
Dep. at 15), and Loconsolo, who was the
general counsel to the NCSD. (See Pl.’s
Counter 56.1 ¶ 161.) Thereafter, plaintiff
made other complaints to Volker, which
Volker forwarded to Ostermann, Loconsolo,
and Sposato. (See id. ¶ 164.)
¶ 21; Siravo Decl. Ex. F, Memorandum
from Chen to File, Nov. 28, 2007.)
Ultimately, Volker found two witnesses
who corroborated plaintiff’s allegation of
the so-called “chair incident.” (County 56.1
¶ 23.) In particular, these witnesses
confirmed that DaSilva had confronted
plaintiff, forced him out of a chair, told him
he stunk “like a monkey,” and called him a
“f****** homo.” (Siravo Decl. Ex. H, Case
Analysis & Pre-Determination, Jan. 3,
2008.) Witnesses also confirmed that, just
before plaintiff claimed that DaSilva had
tailgated him, DaSilva rushed to his car and
said, “I have to go. I have to follow
Rodney.” (Id.)
Instead of launching a full investigation,
Volker claims that the County EEO
conducted only a “limited inquiry” into
plaintiff’s allegations. (See Volker Dep. at
62.) According to Volker, his role in this
“limited inquiry” was to handle the
“immediate impact” of the alleged
discrimination on the members of the
NCSD, while Ostermann investigated
plaintiff’s complaint for bias and
discrimination. (See id. at 64–65.) Volker
explained that the “limited inquiry” was “an
evasion” enabling the County EEO to close
cases without conducting investigations.
(See id. at 176.) Loconsolo also described
the investigation as a “limited inquiry.”
However she testified that limited inquiries
still entailed interviews of potential
witnesses. (See Loconsolo Dep. at 109.)
Volker met with Loconsolo and NCSD
Commissioner Sidney Head (“Head”) to
discuss his findings. (County 56.1 ¶ 24.)
Loconsolo
recommended
that
the
investigation stay with her and Volker rather
than proceed to the NCSD’s Internal Affairs
Unit (“IAU”). (Pl.’s Counter 56.1 ¶ 171.)
Commissioner Head decided to send
Volker’s findings to Zuaro, and on March
12, 2008, Zuaro gave DaSilva a written
reprimand as discipline for his actions.
(County 56.1 ¶¶ 24–25; see Siravo Decl. Ex.
J, Notice of Personnel Action, Mar. 13,
2008.)
2. Allegations of Harassment in 2008
and Defendants’ Response
In the meantime, on January 3, 2008,
plaintiff
submitted
another
interdepartmental memorandum to McDevitt
alleging that DaSilva had called him a
“f****** asshole” the day before. (Pl.’s
Counter 56.1 ¶¶ 72–74; DaSilva 56.1 ¶ 39.)
Twelve days after plaintiff filed his
complaint, Ostermann determined that the
complaint should be referred back to the
NCSD because plaintiff’s allegations did not
concern harassment on the basis of
plaintiff’s membership in a protected class
(e.g., race). (Pl.’s Counter 56.1 ¶ 171.)
Accordingly, the County EEO referred the
matter back to the NCSD for investigation
on November 28, 2007. (See County 56.1
On April 1, 2008, plaintiff submitted two
additional
memoranda
to
Volker
documenting more alleged harassment by
DaSilva. (County 56.1 ¶ 26; DaSilva 56.1
5
¶ 41.) In the first memorandum, plaintiff
stated that DaSilva called him a “f******
asshole” on March 14, 2008. (Siravo Decl.
Ex. K, Memoranda from Johnson to Volker,
Apr. 1, 2008, at 1.) In the second, plaintiff
averred that DaSilva drove alongside
plaintiff on the Southern State Parkway
making faces at plaintiff before speeding
off. 5 (See id. at 2.) Plaintiff also expressed
concern that DaSilva had received only a
reprimand for his actions, and that if the
NCSD returned DaSilva’s firearm to him,
DaSilva might shoot plaintiff. (See id.) In
response to these two memoranda, Zuaro
referred DaSilva to the Employee Assistance
Program. (County 56.1 ¶ 27.)
investigation. (Id. ¶ 190.) According to
Loconsolo, however, IAU and County EEO
investigations may overlap, and only she,
the commander officer of IAU, or the NCSD
Sheriff had the authority to end an IAU
investigation due to a parallel investigation
by the County EEO. (See Loconsolo Dep. at
53–57.) Not until November 18, 2008, did
Kreutz decide to investigate the August 20,
2008 incident, and IAU took two years to
complete the investigation. (Pl.’s Counter
56.1 ¶¶ 198, 201.)
Meanwhile, as a result of the August 20,
2008 incident, Zuaro, Gruntorad, and
McDevitt met with DaSilva and his union
representative.
(County
56.1
¶ 30.)
Ultimately, no disciplinary action was taken
against DaSilva, but an alternative
arrangement was made for DaSilva to pick
up his paycheck elsewhere so that he would
not cross paths with plaintiff. (County 56.1
¶ 30; see E-mail from Zuaro to Head, Sept.
5, 2008.) No further incidents occurred
between plaintiff and DaSilva while they
were picking up their paychecks. (County
56.1 ¶ 31.)
On August 20, 2008, plaintiff submitted
another inter-departmental memorandum in
which he alleged that DaSilva had
intentionally bumped him with his shoulder
while the two officers were picking up their
paychecks.6 (County 56.1 ¶ 28; DaSilva 56.1
¶ 45.) At least one witness confirmed
plaintiff’s version of events. (County 56.1
¶ 29.) Plaintiff also filed a complaint dated
August 21, 2008, with the County EEO. (See
Brewington Decl. Ex. II, County EEO
Compl., Aug. 21, 2008.) The complaint
alleged harassment on the basis of
retaliation, but not race. (See id. at 1; see
also DaSilva 56.1 ¶¶ 55–56.)
On September 4, 2008, plaintiff
submitted additional memoranda alleging
further harassment by DaSilva. (County 56.1
¶ 32.) In one memorandum, plaintiff
claimed that DaSilva had followed him into
a Walmart parking lot and waited behind
him for several minutes. (Id. ¶ 32; DaSilva
56.1 ¶ 49; Siravo Decl. Ex. N, Memoranda
from Johnson to Gruntorad, Sept. 4, 2008, at
1.) In the second memorandum dated
September 4, 2008, plaintiff complained that
while he was leaving work and merging
onto the Southern State Parkway, DaSilva
raced past him and almost cut him off. 7
(County 56.1 ¶ 32; DaSilva 56.1 ¶ 46;
Golio, the supervisor of the NCSD’s
Legal Unit, directed plaintiff to meet with
Kreutz, a supervisor in the IAU. (Pl.’s
Counter 56.1 ¶¶ 177, 187–88.) Plaintiff met
with Kreutz on August 22, 2008. (Id. ¶ 189.)
Kreutz informed plaintiff that IAU could not
assist plaintiff at that time because the
County EEO was still conducting its
5
Plaintiff also described these incidents in his
deposition. (See Johnson Dep. at 111–15, 118–20.)
6
Plaintiff described this incident in his deposition, as
well. (See Johnson Dep. at 141–47.)
7
Plaintiff testified about these events during his
deposition. (See Johnson Dep. at 124–30, 132–36.)
6
Siravo Decl. Ex. N, Memoranda, Sept. 4,
2008, at 2.) Plaintiff testified that he had
complained to Zuaro about DaSilva almost
running him off the road, but that Zuaro said
“he couldn’t do anything until he [had] seen
blood.” (Johnson Dep. at 139–40.)
Core Law Library at his request. (County
56.1 ¶ 37.) As plaintiff explained in his
deposition, he told Gruntorad that he was
“burnt out” from his assignment to the 832
Law Library, which had involved dealing
with eighty to one hundred inmates per day.
(See Johnson Dep. at 186–87, 193.) By
contrast, a correction officer assigned to the
Core Library dealt with approximately ten
inmates per day. (See id. at 186–87.) Indeed,
plaintiff testified that he went through five
partners in three years while assigned to the
832 Law Library. (See id. at 188.)
Plaintiff had another incident with
DaSilva on August 29, 2008, which he
memorialized in a separate interdepartmental memorandum to Kreutz dated
September 8, 2008. (See Johnson Dep. at
160–64; DaSilva 56.1 ¶ 51; Pl.’s Counter
56.1 ¶¶ 92–98.) In this memorandum,
plaintiff alleged that the rear passenger side
of his car had been hit by another car while
parked in the NCSD parking lot. (Pl.’s
Counter 56.1 ¶ 92; DaSilva 56.1 ¶ 51). The
blue residue on plaintiff’s car was very
similar to the blue paint on DaSilva’s car,
and numerous correction officers had
witnessed DaSilva painting his car around
the same time that plaintiff’s car was hit.
(Pl.’s Counter 56.1 ¶¶ 92–96.)
Plaintiff’s placement in the Core Law
Library put him in a position to have more
contact with DaSilva, however. (County
56.1 ¶ 52.) On December 17, 2009, plaintiff
claims that he encountered DaSilva in the
Core Courtyard, and that DaSilva called him
a “cock sucking n*****” and said that his
“mother was a whore.” (County 56.1 ¶ 40.)
According
to
an
inter-departmental
memorandum submitted by plaintiff on
December 18, 2009, DaSilva continued
calling plaintiff a n***** and threated to
“kick [his] ass.” (Siravo Decl. Ex. P,
Memorandum from Johnson to McDevitt,
Dec. 18, 2009.) Plaintiff also filed a
complaint with the County EEO on
December 18, 2009, alleging the same
conduct and claiming harassment on the
basis of his race, color, and sex. (See
DaSilva 56.1 ¶¶ 60–61; Brewington Decl.
Ex. HH, County EEO Compl., Dec. 18,
2009.)
On August 1, 2008, plaintiff filed a
complaint
with
the
County EEO
documenting his allegations contained in his
inter-departmental memoranda dated from
January 3, 2008, through September 8, 2008.
(DaSilva 56.1 ¶ 54.)
On September 23, 2008, DaSilva was
transferred out of the Rehabilitation Unit to
the Security Unit. (County 56.1 ¶ 34.) Zuaro
testified that he transferred DaSilva to the
Security Unit so that DaSilva would receive
closer supervision. (County 56.1 ¶ 35.) The
next incident between plaintiff and DaSilva
did not occur until December 17, 2009—
over one year after DaSilva’s transfer.
(County 56.1 ¶¶ 36, 40.)
Plaintiff’s
December
18,
2009
memorandum was referred to the IAU for an
investigation. (County 56.1 ¶ 41.) Plaintiff
stated that he would provide a statement to
investigators if ordered to do so; in response,
he was told that he would not be ordered to
give a statement. (County 56.1 ¶ 42–43;
Pl.’s Reply 56.1 ¶ 42; see Siravo Decl. Ex.
Q, NCSD IAU Case Narration, June 21,
2010.) Because plaintiff did not give a
3. Allegations of Harassment in 2009
Sometime in 2009, plaintiff was
transferred from the 832 Law Library to the
7
statement and DaSilva denied the
allegations,
the
IAU
closed
the
investigation. (County 56.1 ¶ 43; see Siravo
Decl. Ex. Q, NCSD IAU Case Narration,
June 21, 2010.)
complaints about DaSilva, as he described
the 832 Law Library as a “burnout post.”
(See Pl.’s Reply 56.1 ¶ 53; Johnson Dep. at
186, 254.) Plaintiff’s salary, benefits, title,
and schedule remained unchanged, and he
had no additional encounters with DaSilva
after the transfer. (County 56.1 ¶¶ 55–57.)
4. Allegations of Harassment in 2010 and
Plaintiff’s Transfer to the 832 Law Library
Plaintiff complained of his transfer to
Gruntorad in two inter-departmental
memoranda dated March 17, 2010. (County
56.1 ¶ 60.) In the first memorandum,
plaintiff requested to be transferred out of
the 832 Law Library, explaining that he had
already served for three years in the 832
Law Library, and that the 832 Law Library
was known as a “burnout post,”
“punishment assignment,” and “the least
desirable post in the entire unit.” (Siravo
Decl. Ex. V, Memoranda from Johnson to
Gruntorad, Mar. 17, 2010, at 1.) In the
second memorandum, plaintiff expressed his
belief that he was not being treated fairly
and that he was assigned to the 832 Law
Library as retaliation for his prior
complaints. (Id. at 2.) Plaintiff sent a copy of
the second memorandum to his private
attorney, the president of his union, and
Gruntorad’s superior, Captain Ronald
Rogers. (County 56.1 ¶¶ 61–62.)
Plaintiff submitted yet another interdepartmental
memorandum
alleging
harassment by DaSilva on January 11, 2010.
(County 56.1 ¶ 44.) In this memorandum
and in his deposition testimony, plaintiff
claims that DaSilva spit toward him.
(County 56.1 ¶ 44; Johnson Dep. at 215.)
In response to plaintiff’s January 11,
2010 memorandum, Gruntorad requested
reports from all possible witnesses and
referred the memorandum to the IAU.
(County 56.1 ¶¶ 46–47.) Correction Officer
Darryl Evans, whom plaintiff had identified
as a possible witness to the incident, stated
that he had heard “what appeared to be a
spitting sound.” (See Siravo Decl. Ex. S,
NCSD IAU Case Narration, June 21, 2010.)
Ultimately, however, the IAU closed the
case as “not sustained.” (County 56.1 ¶ 50.)
On January 12, 2010, Gruntorad
transferred plaintiff back to the 832 Law
Library. Gruntorad testified that she
transferred plaintiff to avoid further
incidents between plaintiff and DaSilva, and
because many other transfers were made at
the same time. (County 56.1 ¶¶ 53–54; Pl.’s
Reply 56.1 ¶¶ 53–54; see Gruntorad Dep. at
248.) An e-mail from Gruntorad to her
supervisor explained that she transferred
Johnson because she wanted to separate him
from DaSilva and needed to make room in
the Core Library for someone else. (See
Siravo Decl. Ex. T, E-mail from Gruntorad
to Rogers, Jan. 22, 2010.) Plaintiff claims
that Gruntorad transferred him back to the
832 Law Library as retaliation for his
McDevitt found Gruntorad crying in her
office over plaintiff’s memorandum. (Pl.’s
Counter 56.1 ¶ 125.) Gruntorad, who was
set to retire at the end of the month,
considered plaintiff’s memorandum to be
harassment
and
intimidation.
(See
Brewington Decl. Ex. DD, Memorandum
from Gruntorad to Sposato, Mar. 18, 2010.)
For copying his
attorney and
Gruntorad’s superior, Gruntorad signed off
on the issuance of a Notice of Personnel
Action (“NOPA”) against plaintiff, and
plaintiff lost ten vacation days. (County 56.1
¶ 63; Siravo Decl. Ex. X, NOPA, Mar. 29,
2010.) Plaintiff grieved his discipline before
8
an arbitrator, and the arbitrator found that
plaintiff had violated the NCSD’s Rules and
Regulations by sending the memorandum to
his private attorney, but not by sending it to
Gruntorad’s superior. (See Siravo Decl. Ex.
Z, Arbitrator Decision, Mar. 29, 2011.) The
arbitrator
also
reduced
plaintiff’s
punishment from the loss of vacation days to
a reprimand. (See id.) In his deposition
testimony, plaintiff explained that he did not
know that he was violating the NCSD’s
Rules and Regulations at the time, but he
knows now that he did violate the rules. (See
Johnson Dep. at 259.)
plaintiff filed his joint opposition to the
motions on August 15, 2014. Defendants
filed their replies on August 29, 2014. The
Court heard oral argument on the motions
on September 19, 2014. This matter is fully
submitted, and the Court has fully
considered the submissions of the parties.
II. STANDARD OF REVIEW
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “the
movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Gonzalez v. City
of Schenectady, 728 F.3d 149, 154 (2d Cir.
2013). The moving party bears the burden of
showing that he is entitled to summary
judgment. See Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2005). “A party
asserting that a fact cannot be or is
genuinely disputed must support the
assertion by: (A) citing to particular parts of
materials in the record, including
depositions,
documents,
electronically
stored
information,
affidavits
or
declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
On July 28, 2010, plaintiff submitted an
inter-departmental
memorandum
to
McDevitt explaining that DaSilva had stated
that he was going to leave plaintiff alone,
that he was planning to retire, and that he
had, in fact, turned on plaintiff’s computer
and left homosexual drawings on plaintiff’s
desk. (County 56.1 ¶ 58; see Siravo Decl.
Ex. U, Memorandum from Johnson to
McDevitt, July 28, 2010.)
Within one year of his transfer to the 832
Law Library, plaintiff was transferred back
to the Core Library. (See Johnson Dep. at
384–85.)
B. Procedural History
Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity
Commission (“EEOC”) on February 18,
2010. The EEOC issued a notice of right to
sue on October 4, 2010.
Shortly thereafter, on December 30,
2010, plaintiff commenced the instant
action. Following discovery by the parties,
DaSilva moved for summary judgment on
February 20, 2014, and the County
defendants moved for summary judgment on
February 21, 2014. A discovery dispute
prolonged the briefing on the motion, and
9
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
III. DISCUSSION
A. Claims against the NCSD
As an initial matter, the Court grants
summary judgment to the NCSD because
the NCSD lacks the legal capacity to be sued
separately from the County. It is wellestablished that the NCSD is merely an
administrative arm of the County and
therefore lacks any independent legal
identity apart from the County. Courts thus
dismiss claims against the NCSD when the
plaintiff has also sued the County itself. See,
e.g., Jones v. Nassau Cnty. Corr. Inst., No.
14-CV-1217 (JFB)(GRB), 2014 WL
1277908, at *4 (E.D.N.Y. Mar. 26, 2014)
(dismissing claims against the NCSD
because it lacks an independent legal
identity); Miller v. Cnty. of Nassau, No. 10CV-3358, 2013 WL 1172833, at *4
(E.D.N.Y. Mar. 19, 2013) (same). For this
reason, the Court grants NCSD’s motion for
summary judgment in its entirety.
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247–48 (emphasis in
original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.
1996) (quoting Research Automation Corp.,
585 F.2d at 33).
B. Official Capacity
Next, the Court grants summary
judgment as to all claims for the individual
defendants in their official capacities
because the County is a named defendant in
the instant case. “‘[O]fficial-capacity suits
generally represent only another way of
pleading an action against an entity of which
an officer is an agent.’” Castanza v. Town of
Brookhaven, 700 F. Supp. 2d 277, 283–84
(E.D.N.Y. 2010) (quoting Monell v. Dep’t of
Soc. Servs. of N.Y.C., 436 U.S. 658, 690
n.55 (1978)); see also Jackler v. Byrne, 658
F.3d 225, 244 (2d Cir. 2011) (noting that “a
claim asserted against a government official
in his official capacity is essentially a claim
against the governmental entity itself”);
Davis v. Stratton, 360 F. App’x 182, 183 (2d
Cir. 2010) (summary order) (“The suit
against the mayor and police chief in their
official capacities is essentially a suit against
10
the City of Schenectady, because in a suit
against a public entity, naming officials of
the public entity in their official capacities
adds nothing to the suit.” (internal citations
and quotation marks omitted)). Accordingly,
where a plaintiff brings claims against both
a municipality and individuals in their
official capacities as agents of that
municipality, “‘courts have routinely
dismissed corresponding claims against
individuals named in their official capacity
as redundant and an inefficient use of
judicial resources.’” Castanza, 700 F. Supp.
2d at 284 (quoting Escobar v. City of New
York, No. 05-CV-3030-ENV-CLP, 2007
WL 1827414, at *3 (E.D.N.Y. June 25,
2007)).
before April 24, 2009 (i.e., more than three
hundred days before the filing of his EEOC
complaint on February 18, 2010). (See
County Defs.’ Mem., at 3.) The Court
disagrees.
Under 42 U.S.C. § 2000e-5(e)(1), a
plaintiff in New York has 300 days “after
the alleged unlawful employment practice
occurred” to file a charge of discrimination
with the EEOC. See, e.g., Elmenayer v. ABF
Freight Sys., Inc., 318 F.3d 130, 133–34 (2d
Cir. 2003); Harris v. City of New York, 186
F.3d 243, 247–48 (2d Cir. 1999). To
determine whether a claim was timely filed,
incidents of employment discrimination or
retaliation “must be categorized as either
discrete acts or continuing violations.” Alers
v. N.Y.C. Human Res. Admin., No. 06-CV6131 (SLT)(LB), 2008 WL 4415246, at *5
(E.D.N.Y. Sept. 24, 2008) (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101,
114–16 (2002)), aff’d, 357 F. App’x 330 (2d
Cir. 2009). A claim based upon a discrete
act of discrimination or retaliation, “such as
termination, failure to promote, denial of
transfer, or refusal to hire,” is time-barred if
the discrete act occurred outside the
applicable limitations period. Morgan, 536
U.S. at 113; see, e.g., Colvin v. State Univ.
Coll. at Farmingdale, No. 13-CV-3595
(SJF)(ARL), 2014 WL 2863224, at *17
(E.D.N.Y. June 19, 2014). This holds true
“even when [a discrete act is] related to acts
alleged in timely filed charges.” Morgan,
536 U.S. at 113. By contrast, a claim based
upon discrimination or retaliation occurring
“over a series of days or perhaps years,”
such as a hostile work environment, is
timely if even one contributing act occurred
within the limitations period. Id. at 116–18;
see, e.g., Elmenayer, 318 F.3d at 134.
Accordingly, a hostile work environment
claim is timely filed even if only one act
contributing to the hostile work environment
occurred within the applicable limitations
period. See, e.g., Raneri v. McCarey, 712 F.
C. Title VII
Plaintiff
brings
hostile
work
environment and retaliation claims under
Title VII against all defendants except
DaSilva. At the outset, the Court notes that
there is no individual liability under Title
VII. Accordingly, the Court grants summary
judgment for all individual defendants on
plaintiff’s Title VII claims. See, e.g.,
Wrighten v. Glowski, 232 F.3d 119, 120 (2d
Cir. 2000) (affirming dismissal of Title VII
claims against individual defendants
“because individuals are not subject to
liability under Title VII”); Copeland v.
Rosen, 38 F. Supp. 2d 298, 302 (S.D.N.Y.
1999) (“[I]ndividual employees may not be
held personally liable under Title VII, even
if they are supervisory personnel with the
power to hire and fire other employee.”).
The Court proceeds to consider the viability
of plaintiff’s Title VII claims against the
County.
1. Statute of Limitations
First, the County defendants contend that
plaintiff’s Title VII claims are time-barred to
the extent they rely on incidents occurring
11
Supp. 2d 271, 281 (S.D.N.Y. 2010) (“To
defeat the statute of limitations by applying
the continuing violation theory, the evidence
must show that such a hostile environment
was created prior to, and continued into, [the
limitations period].”).
U.S. 17, 21 (1993)). “Isolated instances of
harassment ordinarily do not rise to this
level.” Cruz v. Coach Stores, Inc., 202 F.3d
560, 570 (2d Cir. 2000); see also Williams v.
Cnty. of Westchester, 171 F.3d 98, 100–01
(2d Cir. 1999) (“[P]laintiff must show more
than a few isolated incidents of racial
enmity” to establish a claim of a racially
hostile work environment (internal citations
and quotation marks omitted)). A plaintiff
must show not only that the conduct in
question was “severe or pervasive enough to
create an objectively hostile or abusive work
environment,” but also that “the victim . . .
subjectively perceive[d] that environment to
be abusive.” Feingold v. New York, 366 F.3d
138, 150 (2d Cir. 2004) (internal citations
and quotation marks omitted); see also Terry
v. Ashcroft, 336 F.3d 128, 148 (2d Cir.
2003). Relevant factors to consider in
determining whether an environment is
sufficiently hostile include “the frequency of
the discriminatory conduct; its severity;
whether it is physically threatening or
humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with
an employee’s work performance.” Terry,
336 F.3d at 148. The Second Circuit has
noted, however, that “[w]hile the standard
for establishing a hostile work environment
is high, . . . [t]he environment need not be
‘unendurable’ or ‘intolerable.’” Id. (quoting
Whidbee v. Garzarelli Food Specialties,
Inc., 223 F.3d 62, 70 (2d Cir. 2000)).
Moreover, although a hostile work
environment
generally
consists
of
“continuous and concerted” conduct, “a
single act can create a hostile work
environment if it in fact works a
transformation of the plaintiff’s workplace.”
Feingold, 366 F.3d at 150 (quotation marks
and alteration omitted).
Here, plaintiff filed his charge of
discrimination with the EEOC on February
18, 2010. Accordingly, his claims must have
accrued on or after April 24, 2009, in order
to be timely. With respect to plaintiff’s Title
VII hostile work environment claim,
plaintiff has created a triable issue of fact
concerning
harassment
by
DaSilva
extending into 2010. Thus, plaintiff’s hostile
work environment claim encompasses
incidents occurring within the 300 day
limitations period and is timely. As for his
Title VII retaliation claim, the alleged acts
of retaliation—the transfer to the 832 Law
library in January 2010 and the NOPA
issued in March 2010—clearly occurred
within the 300 day limitations period. Thus,
the retaliation claim is timely, as well.
2. Hostile Work Environment
Plaintiff claims that he was subjected to
a racially hostile work environment that can
be imputed to the County. For the reasons
that follow, the Court denies the County’s
motion for summary judgment as to this
claim.
a. Legal Standard
To establish a hostile work environment
under Title VII, a plaintiff must show that
his workplace was “permeated with
‘discriminatory intimidation, ridicule, and
insult . . . that is sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an abusive
working environment.’” Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000)
(quoting Harris v. Forklift Sys., Inc., 510
Furthermore, to succeed on a hostile
work environment claim in the instant case,
plaintiff must link the actions by defendants
to his race. Although “[f]acially neutral
12
incidents may be included, of course, among
the ‘totality of the circumstances’ that courts
consider in any hostile work environment
claim,” Alfano v. Costello, 294 F.3d 365,
378 (2d Cir. 2002), plaintiff nevertheless
must offer some evidence from which a
reasonable jury could infer that the facially
neutral incidents were in fact discriminatory,
see Richardson v. N.Y. State Dep’t of Corr.
Serv., 180 F.3d 426, 440 (2d Cir. 1999)
(“But to sustain a Title VII hostile
environment claim [plaintiff] must show
more—she must produce evidence that she
was discriminated against because of her
race, and this she has not done.”), abrogated
on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006).
judgment is inappropriate.’” Smith v. Town
of Hempstead Dep’t of Sanitation Sanitary
Dist. No. 2, 798 F. Supp. 2d 443, 454
(E.D.N.Y. 2011) (quoting Gallagher v.
Delaney, 139 F.3d 338, 348 (2d Cir. 1998),
abrogated on other grounds by Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)).
b. Application
The Court concludes that plaintiff has
created a triable issue of fact as to whether
he endured a racially hostile work
environment over a year period of four to
five years. Specifically, plaintiff has come
forward with evidence that, if credited,
reasonably could support the following
findings: DaSilva harassed and threatened
him verbally, brandished his gun at plaintiff
in a threatening manner, attempted to drive
plaintiff off the road on several occasions,
followed him outside work, scratched
plaintiff’s car, and put branches in his tires.
A reasonable jury could also find that this
harassment was continuous. Moreover, there
is evidence that DaSilva used raciallycharged language during some of these
incidents. According to plaintiff, DaSilva
called him a n***** and a monkey on
multiple occasions. When evaluating the
totality of the circumstances, if plaintiff’s
evidence is credited, a reasonable jury could
find that plaintiff’s work environment was
permeated with racially discriminatory
intimidation, ridicule, and insult that was
sufficiently severe and pervasive that it
altered the conditions of plaintiff’s
employment and created an abusive working
environment. 8 See, e.g., Benedith v.
Finally, a plaintiff seeking to establish a
hostile work environment claim must
demonstrate that “a specific basis exists for
imputing the objectionable conduct to the
employer.” Alfano, 294 F.3d at 373. As the
Supreme Court and Second Circuit have
noted, “employers are not automatically
liable for . . . harassment perpetrated by their
employees.” Petrosino v. Bell Atl., 385 F.3d
210, 225 (2d Cir. 2004) (citing Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742 (1998);
Faragher v. City of Boca Raton, 524 U.S.
775 (1998)). Where, as here, the harassment
was allegedly committed by a nonsupervisory co-worker, “an employer’s
vicarious liability depends on the plaintiff
showing that the employer knew (or
reasonably should have known) about the
harassment but failed to take appropriate
remedial action.” Petrosino, 385 F.3d at
225. “An employer who has notice of a
discriminatorily abusive environment in the
workplace has a duty to take reasonable
steps to eliminate it.” Murray v. N.Y. Univ.
Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir.
1995). “In the context of summary
judgment, ‘[i]f the evidence creates an issue
of fact as to whether an employer’s action is
effectively remedial and prompt, summary
8
Defendants maintain that they are entitled to
summary judgment because DaSilva did not use any
racial slurs in many of the instances of alleged
harassment of plaintiff. The Court disagrees.
“Facially neutral incidents may be included, of
course, among the ‘totality of the circumstances’ that
courts consider in any hostile work environment
13
Malverne Union Free Sch. Dist., No. 11CV-5964 (ADS)(GRB), 2014 WL 4056554,
at *20 (E.D.N.Y. Aug. 15, 2014) (“‘[G]iven
American history, we recognize that the
word ‘n*****’ can have a highly disturbing
impact on the listener. Thus, a plaintiff’s
repeated subjection to hearing that word
could lead a reasonable factfinder to
conclude that a working environment was
objectively hostile.’” (quoting Hrobowski v.
Worthington Steel Co., 358 F.3d 473, 477
(7th Cir. 2004))). In addition, plaintiff
testified that he subjectively perceived the
environment to be abusive. (See, e.g.,
Johnson Dep. at 37 (“I think he was on a
racially motivated campaign to intimidate
me, to torment me any opportunity he
could.”).)
inter-departmental memorandum (which, the
County contends, led the County EEO to
close his case within twelve days of
receiving it), Volker later found evidence
that DaSilva had, in fact, referred to plaintiff
as a “monkey” during one of the incidents.
In the Court’s view, construing this evidence
most favorably to plaintiff, a reasonable jury
could find that the County’s failure to follow
up any further on the racial component to
DaSilva’s harassment constituted a wholly
inadequate response to DaSilva’s behavior.
Moreover, the relatively minor discipline (a
reprimand) imposed for DaSilva’s conduct
could also support a reasonable finding that
the County’s response to plaintiff’s
complaints was inadequate. See, e.g.,
Howley v. Town of Stratford, 217 F.3d 141,
156 (2d Cir. 2000) (holding that evidence
that defendant-employer imposed minimal
punishment for harassment of plaintiff by its
employee reasonably could “be viewed as an
inappropriate response”). Indeed, there is
evidence that DaSilva continued harassing
plaintiff even after being disciplined.
Because the Court concludes that there is
a genuine issue of fact concerning the
existence of a racially hostile work
environment, the Court must consider
whether there is evidence from which a
reasonable jury could impute that work
environment to the County. The Court finds
that there is. In particular, although plaintiff
failed to identify any evidence of race-based
discrimination in his November 15, 2007
Of course, the County can also point to
evidence showing that it did take steps to
separate plaintiff from DaSilva in an effort
to improve plaintiff’s situation. However,
“[t]he promptness and adequacy of an
employer’s response is generally a question
of fact for the jury,” Dobrich v. Gen.
Dynamics Corp., Elec. Boat Div., 106 F.
Supp. 2d 386, 394 (D. Conn. 2000), and this
case is no different. Accordingly, the Court
denies the County’s motion for summary
judgment as to plaintiff’s Title VII hostile
work environment claim. This claim may
proceed to trial.
claim, so long as a reasonable fact-finder could
conclude that they were, in fact, based on [race].”
Alfano, 294 F.3d at 378; see, e.g., McCowan v. HSBC
Bank USA, N.A., 689 F. Supp. 2d 390, 417 (E.D.N.Y.
2010) (concluding that reasonable jury could find
hostile work environment based on disability based
upon combination of disability-related comments and
facially-neutral incidents); Rodriguez v. City of New
York, 644 F. Supp. 2d 168, 191 (E.D.N.Y. 2008)
(reaching same conclusion with respect to hostile
work environment based on gender); Zhao v. State
Univ. of N.Y., 472 F. Supp. 2d 289, 313 (E.D.N.Y.
2007) (reaching same conclusion with respect to
hostile work environment based on national origin).
Here, a reasonable jury could infer that the facially
neutral incidents of harassment were consistent with
a hostile work environment based on race when there
is evidence that, if credited, DaSilva used racially
discriminatory language on some occasions.
3. Retaliation
Plaintiff asserts that the County
unlawfully retaliated against him for
complaining about DaSilva’s harassment.
He bases this claim upon his transfer to the
14
832 Law Library in January 12, 2010, and
the NOPA issued against him on March 29,
2010. (See Pl.’s Opp’n, at 22–24.) For the
following reasons, the Court grants
summary judgment to the County insofar as
this claim is premised upon the transfer of
plaintiff to the 832 Law Library, but denies
summary judgment to the County with
respect to this claim insofar as it is premised
upon the NOPA.
The defendant need not persuade the
court that it was actually motivated
by the proffered reasons. It is
sufficient if the defendant’s evidence
raises a genuine issue of fact as to
whether
it
discriminated
[or
retaliated] against the plaintiff. To
accomplish this, the defendant must
clearly set forth, through the
introduction of admissible evidence,
the reasons for the [challenged
action].
a. Legal Standard
Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 254–55 (1981); see, e.g., Porter v.
Potter, 366 F. App’x 195, 197 (2d Cir.
2010) (summary order); Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d
Cir. 2001). Where the defendant articulates
such a reason, “the burden then shifts back
to the plaintiff to show that the employer’s
explanation is a pretext for . . . retaliation.”
Kirkland, 2014 WL 3686090, at *2.
Title VII prohibits an employer from
firing an employee in retaliation for having
made a charge of discrimination. 42 U.S.C.
§ 2000e-3(a). In the absence of direct
evidence of a retaliatory motive, a Title VII
retaliation claim is subject to the burdenshifting framework established by the
Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See,
e.g., Kirkland v. Cablevision Sys., --- F.3d at
----, No. 13-3625-CV, 2014 WL 3686090, at
*1 (2d Cir. July 25, 2014); Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013);
Gorzynski v. JetBlue Airways Corp., 596
F.3d 93, 110 (2d Cir. 2010). Under this
framework, a plaintiff must first set forth a
prima facie case of retaliation by showing
that (1) he engaged in a protected activity;
(2) defendant was aware of that activity; (3)
plaintiff suffered an adverse employment
action; and (4) there was a causal connection
between the protected activity and the
adverse employment action. See, e.g., Kwan,
737 F.3d 844; Terry v. Ashcroft, 336 F.3d
128, 141 (2d Cir. 2003). If the plaintiff
establishes a prima facie case of retaliation,
then the burden shifts to the defendantemployer to provide a legitimate, nonretaliatory reason for its actions. See, e.g.,
Kirkland, 2014 WL 3686090, at *2 (citing
McDonnell Douglas, 411 U.S. at 802). The
Supreme Court has explained the
defendant’s burden as follows:
Ultimately, because “Title VII retaliation
claims must be proved according to
traditional principles of but-for causation,”
the plaintiff must show “that the unlawful
retaliation would not have occurred in the
absence of the alleged wrongful action or
actions of the employer.” Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013); see, e.g., Kirkland, 2014 WL
3686090, at *2; Kwan, 737 F.3d at 845.
“‘[B]ut-for’ causation does not require proof
that retaliation was the only cause of the
employer’s action, but only that the adverse
action would not have occurred in the
absence of the retaliatory motive.” Kwan,
737 F.3d at 846. To meet this burden, the
plaintiff may rely on evidence presented to
establish her prima facie case as well as
additional evidence. Such additional
evidence
may
include
direct
or
circumstantial evidence of discrimination.
Desert Palace, Inc. v. Costa, 539 U.S. 90,
99–101 (2003). It is insufficient, however,
15
for a plaintiff merely to show that she
satisfies “McDonnell Douglas’s minimal
requirements of a prima facie case” and to
put forward “evidence from which a
factfinder could find that the employer’s
explanation . . . was false.” James v. N.Y.
Racing Ass’n, 233 F.3d 149, 157 (2d Cir.
2000). Instead, the key is whether there is
sufficient evidence in the record from which
a reasonable trier of fact could find in favor
of plaintiff on the ultimate issue, i.e.,
whether the record contains sufficient
evidence “that retaliation was a but-for
cause of the adverse employment action.”
Weber v. City of New York, 973 F. Supp. 2d
227, 271 (E.D.N.Y. 2013).
plaintiff has testified that the 832 Law
Library was a “burnout” post requiring a
correction officer in that position to interact
with ten times the number of inmates that a
correction officer in the Core Library
supervised. Moreover, plaintiff testified that
he went through five partners in three years
in that position, which supports his claim
that officers tried to get out of that post as
soon as possible. See, e.g., Flynn v. N.Y.
State Div. of Parole, 620 F. Supp. 2d 463,
491 (S.D.N.Y. 2009) (holding that lateral
transfer from Special Offender Unit parole
officer to parole officer handling mixed
caseload
could
constitute
adverse
employment action for purposes of
retaliation claim, where transfer entailed
supervision of more parolees). See generally
Fornah v. Cargo Airport Servs., LLC, No.
12-CV-3638 (RER), 2014 WL 25570, at *14
n.14 (E.D.N.Y. Jan. 2, 2014) (“A transfer
can be an adverse employment action under
a retaliation claim.”) (citing Kessler v.
Westchester Cnty. Dep’t of Soc. Servs., 461
F.3d 199, 209–10 (2d Cir. 2006)). As for the
NOPA, there is at least a genuine issue as to
whether the NOPA affected plaintiff’s
ability to earn a promotion. (See Johnson
Dep. at 369 (explaining how NOPA limits
ability to earn promotion to corporal).)
Accordingly, this form of reprimand may
qualify as an adverse employment action in
that it could reasonably dissuade a
reasonable worker from making a charge of
discrimination. See, e.g., Millea v. Metro-N.
R.R. Co., 658 F.3d 154, 165 (2d Cir. 2011)
(“A formal reprimand issued by an employer
is not a ‘petty slight,’ ‘minor annoyance,’ or
‘trivial’ punishment; it can reduce an
employee’s likelihood of receiving future
bonuses, raises, and promotions, and it may
lead the employee to believe (correctly or
not) that his job is in jeopardy. A reasonable
jury could conclude as much even when, as
here, the letter does not directly or
immediately result in any loss of wages or
b. Application
i. Prima facie case
The County defendants contend that
plaintiff cannot establish a prima facie
retaliation claim as a matter of law because
(1) he was not subjected to an adverse
employment action, and (2) there is no
evidence of a causal connection between
plaintiff’s complaints and those adverse
employment actions. (See County Defs.’
Mem., at 4–6.) The Court disagrees.
First, both plaintiff’s transfer to the 832
Law Library and the NOPA issued against
him could qualify as adverse employment
actions. Significantly, the Supreme Court
has defined an “adverse employment action”
in the Title VII retaliation context (distinct
from, and broader than, the standard in the
Title VII discrimination context) to mean an
action that is “materially adverse” and that
“well might have dissuaded a reasonable
worker from making or supporting a charge
of discrimination.” White, 548 U.S. at 68
(internal citations omitted). Here, a
reasonable jury could find that both
plaintiff’s transfer and the NOPA meet that
standard. With respect to the transfer,
16
benefits, and does not remain in the
employment file permanently.”).
transfer to the 832 Law Library (see County
56.1 ¶ 56); indeed, no additional incidents of
harassment by DaSilva occurred after the
transfer (see id. ¶ 57). Moreover,
Gruntorad’s January 22, 2010 e-mail
explaining her transfers creates at least a
triable issue as to whether plaintiff was
transferred to the 832 Law Library for
administrative reasons. From this evidence,
the Court concludes that the County has met
its burden to proffer a legitimate, nonretaliatory reason for transferring plaintiff to
the 832 Law Library. See, e.g., Cherry v.
Byram Hills Cent. Sch. Dist., No. 11-CV3872 (ER), 2013 WL 2922483, at *10
(S.D.N.Y. June 14, 2013) (holding that
transfer of employee to meet employer’s
staffing needs in face of reduction in
workforce was a legitimate, non-retaliatory
reason for transfer); Kemp v. Metro-N. R.R.,
316 F. App’x 25, 27 (2d Cir. 2009)
(summary order) (holding that “clash of
personalities”
was
legitimate,
nondiscriminatory reason for transferring
employee (citing Davis v. State Univ. of
N.Y., 802 F.2d 638, 642 (2d Cir. 1986)));
Ferrer v. Potter, No. 03-CV-9113 (AJP),
2005 WL 1022439, at *9 n.8 (S.D.N.Y. May
3, 2005) (same) (citing cases).
The Court also concludes that plaintiff
has met his minimal burden to show a causal
connection between his complaints and the
adverse employment actions discussed
supra. See generally Kwan, 737 F.3d at 844
(describing plaintiff’s burden at this stage as
“minimal” and “de minimis” (internal
citations and quotation markets omitted)). At
this stage, a causal connection between the
protected activity and the adverse
employment action can be shown either “(1)
indirectly, by showing that the protected
activity was
followed
closely by
discriminatory treatment, or through other
circumstantial evidence such as disparate
treatment of fellow employees who engaged
in similar conduct; or (2) directly, through
evidence of retaliatory animus directed
against the plaintiff by the defendant.”
Gordon v. N.Y.C. Bd. of Educ., 232 F.3d
111, 117 (2d Cir. 2000). Here, plaintiff has
put forth evidence that his transfer to the 832
Law Library occurred one day after he
submitted
his
January
11,
2010
memorandum complaining of further
harassment by DaSilva. Similarly, plaintiff’s
NOPA followed within weeks of his March
17, 2010 memoranda. This evidence suffices
to shift the burden to the County to proffer
legitimate, non-retaliatory reasons for the
allegedly adverse employment actions
discussed supra.
As for the NOPA, the County claims that
it disciplined plaintiff for violating the
NCSD’s Rules and Regulations by sending
an inter-departmental memorandum to his
private attorney. (County Defs.’ Mem., at
11–12.) A neutral arbitrator found that
plaintiff violated at least one of NCSD’s
Rules and Regulations, and plaintiff
conceded at his own deposition that his
action violated those rules. (See Johnson
Dep. at 259). An employer’s belief that its
employee violated company policy is
certainly a legitimate, non-retaliatory reason
for disciplining that employee. See, e.g.,
Shumway v. United Parcel Serv., Inc., 118
F.3d 60, 65 (2d Cir. 1997); Shepheard v.
N.Y.C. Corr. Dep’t, 360 F. App’x 249, 251
ii. Legitimate, Non-Retaliatory Reasons
With respect to the transfer, the County
claims that Gruntorad transferred plaintiff
from the Core Library to the 832 Law
Library to separate plaintiff and DaSilva,
and also for administrative reasons. (County
Defs.’ Mem., at 9–10; see Siravo Decl. Ex.
T, E-mail from Gruntorad to Rogers, Jan.
22, 2010.) As plaintiff concedes, he had
fewer interactions with DaSilva after his
17
(2d Cir. 2010) (summary order); see also
Matima v. Celli, 228 F.3d 68, 79 (2d Cir.
2000) (“An employer does not violate Title
VII when it takes adverse employment
action against an employee to preserve a
workplace environment that is governed by
rules, subject to a chain of command, free of
commotion, and conducive to the work of
the enterprise.”).
between them and (2) to protect plaintiff
from further incidents of sexual harassment
and sexual assault, at least until the BOE
completed its investigation into the veracity
of her allegations—it seems that transferring
Jackson, the accused harasser, to another
school would have accomplished that
goal”); see also Porter v. Erie Foods Int’l,
Inc., 576 F.3d 629, 642 (7th Cir. 2009) (“In
the usual case we would expect the
employer to remedy the harassment by
inconveniencing the harasser with a transfer
and not the victim.”); Ellison v. Brady, 924
F.2d 872, 882 (9th Cir. 1991) (“We strongly
believe that the victim of sexual harassment
should not be punished for the conduct of
the harasser. We wholeheartedly agree with
the EEOC that a victim of sexual harassment
should not have to work in a less desirable
location as a result of an employer’s remedy
for sexual harassment.”). Construing the
evidence most favorably to plaintiff, a
reasonable jury could conclude from this
evidence, evidence of the short timing
between plaintiff’s January 11, 2010 interdepartmental Memorandum and his transfer,
and the additional evidence of Gruntorad’s
retaliatory motive discussed infra, that
retaliation was a but-for cause of plaintiff’s
transfer to the 832 Law Library.
In sum, the County has come forward
with evidence of legitimate, non-retaliatory
reasons for transferring plaintiff to the 832
Law Library and for issuing the NOPA.
Accordingly, the burden shifts to plaintiff to
come forward with admissible evidence
showing that the County’s proffered reasons
were pretext for retaliation.
iii. Pretext
First, the Court concludes that plaintiff
has raised a triable issue of fact as to
whether his transfer to the 832 Law Library
would not have occurred in the absence of a
retaliatory motive. Gruntorad testified that,
at least in part, she transferred plaintiff
“back to the 832 Law Library because of the
January 11, 2010, Inter-Departmental Memo
Plaintiff submitted regarding further
harassment by Defendant DaSilva.”
(Gruntorad Dep. at 248.) Although she
claims that her motivation behind this
transfer was “to prevent any other problems”
between plaintiff and DaSilva (see id.), it is
unclear why she transferred plaintiff instead
of transferring DaSilva—the one accused of
pervasive harassment. See Williams v. City
of New York, No. 99-CV-2697 (ARR)(LB),
2006 WL 2668211, at *22 (E.D.N.Y. Sept.
11, 2006) (holding that plaintiff’s retaliatory
transfer claim survived summary judgment
where defendant transferred plaintiff instead
of his accused harasser, observing that “[i]f,
in fact, defendants’ goal was to separate
plaintiff and Jackson—presumably both (1)
to prevent further disruptive conflict
As for the NOPA, plaintiff has come
forward with evidence that Gruntorad
became upset when she received plaintiff’s
memorandum complaining that his transfer
to the 832 Law Library was unfair.
According to McDevitt, Gruntorad cried
after receiving it. Gruntorad herself
indicated her displeasure with plaintiff’s
memorandum in a memorandum sent to
Sposato, describing it as harassment and
intimidation. Additionally, as plaintiff
observes,
his
January
11,
2010
memorandum also indicates that it was sent
to plaintiff’s private attorney; however,
plaintiff was not disciplined at that time.
(Pl.’s Counter 56.1 ¶ 141; see Siravo Decl.
18
Ex. R, Memorandum from Johnson to
McDevitt, Jan. 11, 2010.) The fact that
plaintiff was not punished for the same
conduct in the past, coupled with evidence
of Gruntorad’s reaction to plaintiff’s March
17, 2010 memorandum, could allow a
reasonable jury to infer that the NOPA
would not have been issued in the absence
of a retaliatory motive.
Edmundson, 392 F.3d 502, 504 (2d Cir.
2004) (citing cases); Harrison v. Harlem
Hosp., 364 F. App’x 686, 688 (2d Cir. 2010)
(summary order). Second, Section 1981 and
Section 1983 claims against a municipality
require proof “that the challenged acts were
performed pursuant to a municipal policy or
custom.” Patterson, 375 F.3d at 226 (citing
Jett v. Dallas Indep. Sch. Dist., 491 U.S.
701, 733–36 (1989) (discussing Section
1981); Monell, 436 U.S. at 692–94
(discussing Section 1983)). Third, as noted
supra, individuals cannot be held liable
under Title VII. See id. By contrast,
individuals may be held liable under
Sections 1981 and 1983 “for certain types of
discriminatory acts, including those giving
rise to a hostile work environment.” Id.
(citing cases). “Fourth, although in certain
circumstances a Title VII claim may be
established through proof of a defendant’s
mere negligence, without a showing of
discriminatory intent, a plaintiff pursuing a
claimed violation of § 1981 or denial of
equal protection under § 1983 must show
that the discrimination was intentional.” Id.
at 226–27 (internal citations omitted). In
other words, whereas a plaintiff may pursue
For the foregoing reasons, the Court
denies summary judgment to the County as
to the Title VII retaliation claim.
D. Claims under Sections 1981 and 1983
The Court turns next to plaintiff’s hostile
work environment and retaliation claims
brought under Sections 1981 and 1983.
1. Legal Standards
Most of the standards applicable to Title
VII claims, discussed in detail supra, also
apply to Section 1981 employment claims
and Section 1983 equal protection claims.
See, e.g., Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 720 (2d Cir.
2010); Patterson v. Cnty. of Oneida, N.Y.,
375 F.3d 206, 225 (2d Cir. 2004). However,
the Second Circuit has noted “several
significant differences” between the
standards governing Title VII claims, on the
one hand, and claims brought under Sections
1981 and 1983, on the other hand. See
Patterson, 375 F.3d at 225. First, whereas
Title VII claims must be filed within 300
days of an EEOC filing, New York’s threeyear statute of limitations governs the
timeliness of claims brought under Sections
1981 and 1983. 9 See id.; see also Curto v.
Defs.’ Mem., at 19 n.8.) The Court disagrees for
substantially the same reasons discussed supra in
connection with the timeliness of plaintiff’s Title VII
claims. Cf. Bermudez v. City of New York, 783 F.
Supp. 2d 560, 582 (S.D.N.Y. 2011) (applying Title
VII standards of assessing timeliness to claims
brought under Sections 1981 and 1983); Bartoli v.
City of New York, No. 09-CV-4163 (JG)(VVP), 2010
WL 1539055, at *3 (E.D.N.Y. Apr. 19, 2010) (same)
(citing cases). Plaintiff commenced this action on
December 30, 2010; thus, his Section 1981 and 1983
claims must have accrued on or after April 24, 2009,
in order to be timely. Because plaintiff has created a
triable issue of fact concerning harassment by
DaSilva extending into 2010, his entire hostile work
environment claim is timely under the continuing
violation doctrine. Plaintiff’s retaliation claim is
timely because the alleged acts of retaliation occurred
in 2010—well within the three year limitations
period.
The County defendants contend that plaintiff’s
Section 1981 and Section 1983 claims are untimely
to the extent they are premised on incidents that
occurred more than three years before the
commencement of the instant case. (See County
9
19
a disparate impact theory of liability under
Title VII, he may not do so under Sections
1981 or 1983. See Reynolds v. Barrett, 685
F.3d 193, 201 (2d Cir. 2012) (citing
Patterson, 375 F.3d at 226).
As for the Section 1981 and Section
1983 claims based on retaliation, however,
there is simply no evidence of a County
policy or custom that caused the alleged
retaliation. In fact, plaintiff points to no such
evidence in his opposition papers; he has
limited his argument only to the existence of
a policy or custom as it relates to a racially
hostile work environment. Accordingly, the
Court grants the County’s motion for
summary judgment as to the Section 1981
and Section 1983 retaliation claims.
2. County Liability
With respect to plaintiff’s hostile work
environment claims, some of the individuals
who conducted the investigation into
plaintiff’s harassment—individuals such as
the director of the County EEO, the
commissioner of the NCSD, and the general
counsel to the NCSD—were policymakers
for the County. See Wharton v. Cnty. of
Nassau, No. 10-CV-0265 (JS)(AKT), 2013
WL 4851713, at *14 (E.D.N.Y. Sept. 10,
2013) (concluding that Loconsolo and
Ostermann were policymakers for the
County). Evidence that their investigation
may have been inadequate, discussed supra,
thus supports liability under Sections 1981
and 1983. See Smith, 798 F. Supp. 2d at 454
(“Here, the individuals who conducted the
investigation into the hanging of the noose
were policy makers for the Sanitary District.
Thus, the evidence that their investigation
may have been insufficient raises a triable
issue of fact as to whether their failure to
conduct an adequate investigation could be
attributed to the Sanitary District as
municipal policy. . . . Therefore, summary
judgment on the Section 1981 and 1983
hostile work environment claims against the
Sanitary District is not appropriate.”).
Moreover,
plaintiff
has
introduced
additional evidence, through the testimony
of Volker, that the County EEO had a de
facto policy of investigating complaints by
conducting only a “limited inquiry” despite
the County’s formal policy requiring a more
expansive investigation. On the basis of this
evidence, the Court denies the County’s
motion for summary judgment on the
Sections 1981 and 1983 hostile work
environment claims.
3. Individual Liability
Both Section 1981 and Section 1983
require personal involvement in the claimed
violation in order to hold an individual
defendant liable in his individual capacity.
See, e.g., Patterson, 375 F.3d at 229.
“Personal involvement, within the meaning
of this concept, includes not only direct
participation in the alleged violation but also
gross negligence in the supervision of
subordinates who committed the wrongful
acts and failure to take action upon receiving
information that constitutional violations are
occurring.” Id. (quoting Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995)).
a. DaSilva
DaSilva argues that the Section 1981 and
Section 1983 claims fail as a matter of law
because he was not acting under color of
state law. (See DaSilva Mem., at 8–11.) Cf.
Glendora v. Hostetter, 916 F. Supp. 1339,
1341 (S.D.N.Y.) (“To recover under 42
U.S.C. §§ 1983 and 1981, a plaintiff must
show the alleged violation occurred ‘under
color of state law.’”), aff’d, 104 F.3d 353
(2d Cir. 1996). Plaintiff fails to respond to
this argument in his opposition brief.
“In
a
case
charging
hostile
environment . . . harassment, ‘under color of
state law’ ordinarily requires that the
20
harasser be a supervisor or have some
position of authority or control over the
plaintiff.” Quinn v. Nassau Cnty. Police
Dep’t, 53 F. Supp. 2d 347, 355 (E.D.N.Y.
1999) (internal citations and quotation
marks omitted). “Where the individual
defendant is merely a co-worker of the
plaintiff, such claims are routinely dismissed
for failure to state a claim.” Olsen v. Cnty. of
Nassau, No. 05-CV-3623 (ETB), 2008 WL
4838705, at *7 (E.D.N.Y. Nov. 4, 2008); see
also Burns v. City of Utica, --- F. Supp. 2d ---, No. 12-CV-1741 (FJS/DEP), 2014 WL
688975, at *6 (N.D.N.Y. Feb. 20, 2014)
(dismissing Section 1983 claim because no
allegation that defendant’s sexual assault of
plaintiff related to his duties as firefighter);
Kohutka v. Town of Hempstead, 994 F.
Supp. 2d 305, 317 (E.D.N.Y. 2014)
(dismissing Section 1983 claim against
individuals who did not have supervisory
authority over plaintiff and did not use their
governmental authority in sexually harassing
her); Petrosky v. N.Y. State Dep’t of Motor
Vehicles, 72 F. Supp. 2d 39, 63 (N.D.N.Y.
1999) (“Other courts have rejected the
contention that co-worker harassment was
done under color of law ‘when the
harassment did not involve use of state
authority or position’” (quoting Woodward
v. City of Worland, 977 F.2d 1392, 1400
(10th Cir. 1992))). The Second Circuit,
although not taking a definitive position on
this issue, observed in Patterson that
“[o]ther circuits confronted with a plaintiff’s
claims of harassment by his or her
nonsupervisory co-workers have ruled that
some harassment should be construed
merely as personal-frolic hazing or
horseplay and not as state action.” 375 F.3d
at 230.
abandoned. See, e.g., Maher v. Alliance
Mortg. Banking Corp., 650 F. Supp. 2d 249,
267–68 (E.D.N.Y. 2009) (“‘Federal courts
may deem a claim abandoned when a party
moves for summary judgment on one
ground and the party opposing summary
judgment fails to address the argument in
any way.’” (quoting Taylor v. City of New
York, 269 F. Supp. 2d 68, 75 (E.D.N.Y.
2003))). In any event, it is undisputed that
plaintiff and DaSilva held the same rank of
Correction Officer; DaSilva was not
plaintiff’s superior. In addition, the
harassment of plaintiff for which DaSilva is
accused had absolutely no connection to
DaSilva’s position as a correction officer.
Instead, even when viewing the evidence in
the light most favorable to plaintiff, the
Court concludes that DaSilva’s harassment
of plaintiff was completely outside the scope
of DaSilva’s governmental authority.
Accordingly, the Court grants summary
judgment to DaSilva as to the Section 1981
and Section 1983 claims against him
because DaSilva’s conduct did not constitute
state action.
b. Gruntorad
To the extent plaintiff premises his
Section 1981 and 1983 claims on alleged
retaliation, a reasonable jury could find that
Gruntorad issued the decision to transfer
plaintiff to the 832 Law Library and the
NOPA in retaliation for plaintiff’s
memoranda complaining of discrimination
and harassment. As Gruntorad was
personally involved in these decisions, she
may be held liable for retaliation under
Sections 1981 and 1983. Therefore, the
Court denies Gruntorad’s motion for
summary judgment as to these claims.
Here, as an initial matter, plaintiff’s
failure to address DaSilva’s argument
concerning his individual liability under
Sections 1981 and 1983 could be grounds
for the Court to consider these claims
However, there is no evidence that
Gruntorad was personally involved in
creating the racially hostile work
environment of which plaintiff complains.
21
Moreover, plaintiff has come forward with
evidence showing at most that Gruntorad
was negligent in responding to plaintiff’s
complaints about that hostile work
environment. As the Second Circuit has
held, mere negligence in the supervision of
subordinates who commit wrongful acts is
insufficient to give rise to individual liability
under Sections 1981 and 1983. See, e.g.,
Whidbee, 223 F.3d at 75 (“At most, the
Garzarellis were negligent in maintaining
their restaurant’s anti-discrimination policy.
Even if this were the case, such negligence
does
not
constitute
the
‘personal
involvement’ or ‘affirmative link’ necessary
to support a claim of individual liability.”);
cf. Patterson, 375 F.3d at 229 (“Personal
involvement, within the meaning of this
concept, includes not only direct
participation in the alleged violation but also
gross negligence in the supervision of
subordinates who committed the wrongful
acts and failure to take action upon receiving
information that constitutional violations are
occurring.” (emphasis added)). Accordingly,
the Court grants Gruntorad’s motion for
summary judgment as to these claims.
193 F. Supp. 2d 636, 653 (E.D.N.Y. 2002).
Moreover, although some of these
defendants were involved in the issuance of
the NOPA, there is no evidence that a
retaliatory animus motivated anyone else
except Gruntorad to take disciplinary action
against plaintiff. Therefore, the Court grants
summary judgment to these defendants on
the Section 1981 and Section 1983
retaliation claims.
c. Other Defendants
E. Title VI Claim
As for the remaining defendants, even
when viewing the evidence in the light most
favorable to plaintiff, the evidence shows
that Sposato, Loconsolo, Kreutz, Zuaro,
Golio, and McDevitt were at most negligent
in their failure to follow the County’s
internal investigation and antidiscrimination
policies in responding to plaintiff’s
complaints about DaSilva’s behavior.
Because there are no other facts
demonstrating their personal involvement in
the allegedly hostile work environment, the
Court grants summary judgment to these
defendants as to the hostile work
environment claims under Sections 1981
and 1983. See, e.g., Whidbee, 223 F.3d at
75; Marvelli v. Chaps Cmty. Health Ctr.,
Plaintiff brings a Title VI claim against
all defendants except DaSilva. As an initial
matter, it is well established that individuals
sued in their individual capacities cannot be
held liable under Title VI. See, e.g., Milione
v. City Univ. of N.Y., 950 F. Supp. 2d 704,
708 (S.D.N.Y. 2013), aff’d, No. 13-2761,
2014 WL 2109051 (2d Cir. May 21, 2014);
DT v. Somers Cent. Sch. Dist., 588 F. Supp.
2d 485, 498 (S.D.N.Y. 2008), aff’d, 348 F.
App’x 697 (2d Cir. 2009); Peters v. Molloy
Coll. of Rockville Ctr., No. 07-CV-2553
(DRH)(ETB), 2008 WL 2704920, at *8
(E.D.N.Y. July 8, 2008) (citing cases).
Accordingly, the Court grants summary
judgment for all individual defendants on
this claim. For the reasons that follow, the
*
*
*
To summarize, plaintiff’s Section 1981
and Section 1983 hostile work environment
claims may proceed against the County, and
his Section 1981 and 1983 retaliation claims
may proceed against Gruntorad. The Court
grants summary judgment to all individual
defendants with respect to the Section 1981
and Section 1983 hostile work environment
claims. The Court also grants summary
judgment to the County, DaSilva, Sposato,
Loconsolo, Kreutz, Zuaro, Golio, and
McDevitt with respect to plaintiff’s
retaliation claims under Sections 1981 and
1983.
22
Court also grants summary judgment for the
County as to this claim.
the County or NCSD received federal
funding. For this reason, plaintiff’s claim
fails as a matter of law. See Commodari v.
Long Island Univ., 62 F. App’x 28, 30 (2d
Cir. 2003) (summary order) (affirming
summary judgment where there was “no
evidence that the Union received federal
financial aid for purposes of sustaining
[plaintiff’s] Title VI claim”); Carmody v.
Vill. of Rockville Ctr., 661 F. Supp. 2d 299,
338 (E.D.N.Y. 2009) (granting summary
judgement where “plaintiff has failed to
offer any evidence whatsoever to support his
claim that the Village Defendants received
federal funds aimed at employment during
the time that plaintiff was employed with the
RVCPD, thereby subjecting them to
potential liability under Title VI”).
Accordingly, the Court grants summary
judgment for all defendants on the Title VI
claim.10
1. Legal Standard
Title VI of the Civil Rights Act of 1964
prohibits programs that receive federal
funding from engaging in intentional
discrimination on the basis of race. 42
U.S.C. § 2000d. “In order to recover for a
violation of Title VI, a plaintiff must
demonstrate that (1) the defendant received
federal financial assistance, (2) the plaintiff
was an intended beneficiary of the program
or activity receiving the assistance, and (3)
the defendant discriminated against the
plaintiff on the basis of race, color, or
national origin in connection with that
program or activity.” Martin v. State Univ.
of N.Y., 704 F. Supp. 2d 202, 233 (E.D.N.Y.
2010) (citing Commodari v. Long Island
Univ., 89 F. Supp. 2d 353, 378 (E.D.N.Y.
2000)). In an employment discrimination
case, “the federal funds received by
defendants must have been aimed primarily
at providing employment.” Id. (citing Ass’n
Against Discrimination In Employment
(“AADE”), Inc. v. City of Bridgeport, 647
F.2d 256, 276 (2d Cir. 1981)).
F. Section 1985(3)
Plaintiff brings a Section 1985(3)
conspiracy claim against all defendants. For
the following reasons, the Court grants
summary judgment to all defendants on this
claim.
2. Application
1. Legal Standard
The County defendants argue for
summary judgment on this claim because
the record is devoid of evidence showing
that the County of NCSD received federal
funding, or that plaintiff was the intended
recipient of a program receiving such
funding. (County Defs.’ Mem., at 18–19.)
Plaintiff does not contest this point.
Section 1985(3) prohibits two or more
persons from conspiring for the purpose of
depriving any person of the equal protection
of the laws or of equal privileges and
immunities under the laws. 42 U.S.C.
§ 1985(3). To establish a claim under
§ 1985(3), a plaintiff must establish (1) a
conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or
class of persons of equal protection of the
Plaintiff’s failure to address the County
defendants’ argument could be grounds for
the Court to consider this claim abandoned.
See, e.g., Maher, 650 F. Supp. 2d at 267–68.
Even if the claim were not abandoned, there
is absolutely no evidence in the record that
Because the Court concludes that plaintiff’s Title
VI claim fails on the merits as a matter of law, the
Court need not address the County defendants’
statute of limitations argument.
10
23
laws, or of equal privileges and immunities
under the laws; (3) an act in furtherance of
the conspiracy; and (4) an injury to the
plaintiff’s person or property, or a
deprivation of a right or privilege of a
citizen of the United States. See, e.g.,
Thomas v. Roach, 165 F.3d 137, 146 (2d
Cir. 1999) (citing Traggis v. St. Barbara’s
Greek Orthodox Church, 851 F.2d 584,
586–87 (2d Cir. 1988)); Frasco v. Mastic
Beach Prop. Owners’ Ass’n, No. 12-CV2756 (JFB)(WDW), 2014 WL 3735870, at
*4 (E.D.N.Y. July 29, 2014); Hollman v.
Cnty. of Suffolk, No. 06-CV-3589
(JFB)(ARL), 2011 WL 280927, at *11
(E.D.N.Y. Jan. 27, 2011).
apply, a plaintiff must show that the
defendants were “pursuing personal interests
wholly separate and apart from the entity.”
Tardd v. Brookhaven Nat’l Lab., 407 F.
Supp. 2d 404, 414 (E.D.N.Y. 2006) (citing
cases); see, e.g., Little v. City of New York,
487 F. Supp. 2d 426, 442 (S.D.N.Y. 2007)
(dismissing conspiracy claims under
Sections 1983 and 1985 under intracorporate
conspiracy doctrine where plaintiff “does
not provide any evidence to suggest that
[defendants] were motivated by an
independent personal stake in his arrest and
prosecution”).
The intracorporate conspiracy doctrine
posits that the officers, agents, and
employees of a single corporate or
municipal entity, each acting within the
scope of his or her employment, are legally
incapable of conspiring with each other. See,
e.g., Farbstein v. Hicksville Pub. Library,
254 F. App’x 50, 51 (2d Cir. 2007)
(summary order) (affirming dismissal of
conspiracy complaint “at the first step of
analysis” because complaint made reference
only to employees of same corporation);
Herrmann v. Moore, 576 F.2d 453, 459 (2d
Cir. 1978) (“[T]here is no conspiracy [under
Section 1985] if the conspiratorial conduct
challenged is essentially a single act by a
single corporation acting exclusively
through its own . . . officers[ ] and
employees, each acting within the scope of
his employment.”); Cameron v. Church, 253
F. Supp. 2d 611, 623 (S.D.N.Y. 2003);
Quinn v. Nassau Cnty. Police Dep’t, 53 F.
Supp. 2d 347, 359–60 (E.D.N.Y. 1999); Rini
v. Zwirn, 886 F. Supp. 270, 292 (E.D.N.Y.
1995) (“Intracorporate immunity has also
been extended to the context of conspiracies
between a public entity and its employees.”).
To show that defendants acted outside the
scope of their employment, such that the
intracorporate conspiracy doctrine does not
All
individual
defendants
were
employees of the County during the relevant
time period. Moreover, plaintiff has failed to
submit any evidence suggesting that any of
these defendants acted outside the scope of
their official duties and in their own
personal interests in discriminating or
retaliating against him. Plaintiff’s effort to
salvage this claim by pointing to proof of
discriminatory and retaliatory motives is
unavailing; if such evidence sufficed to
avoid dismissal under the intracorporate
conspiracy doctrine, then the limited
exception to the intracorporate conspiracy
doctrine “would swallow the rule.” Jeter v.
N.Y.C. Dep’t of Educ., 549 F. Supp. 2d 295,
303 (E.D.N.Y. 2008) (dismissing Section
1985(3) claim where plaintiff had “not
alleged that any of the alleged conspirators
were motivated by anything other than the
same bias and desire to retaliate that
permeate his complaint”); see also Feacher
v. Intercontinental Hotels Grp., 563 F. Supp.
2d 389, 401 (N.D.N.Y. 2008). Accordingly,
plaintiff’s Section 1985(3) fails as a matter
of law, and all defendants are entitled to
summary judgment on this claim.
2. Application
24
G. Section 1986
rules. See, e.g., Felder v. Casey, 487 U.S.
131, 141 (1988). As such, New York County
Law § 52 applies in this case and provides
that
Plaintiff also brings a claim under
Section 1986, which “provides a cause of
action against anyone who having
knowledge that any of the wrongs conspired
to be done and mentioned in section 1985
are about to be committed and having power
to prevent or aid, neglects to do so.”
Thomas, 165 F.3d at 147 (citation and
internal quotation marks omitted). Section
1985 liability is a necessary predicate to a
Section 1986 claim. See Brown v. City of
Oneonta, 221 F.3d 329, 341 (2d Cir. 2000);
see also Posr v. Court Officer Shield # 207,
180 F.3d 409, 419 (2d Cir. 1999) (affirming
dismissal of Section 1986 claim where
district court also dismissed Section 1985
claim). Here, because the Court grants
summary judgment for defendants as to the
Section 1985 claim, the Court also grants
summary judgment for all defendants on the
Section 1986 claim.11
[a]ny claim or notice of claim against
a county . . . for damages arising at
law or in equity . . . alleged to have
been caused in whole or in part by or
because of any misfeasance,
omission of duty, negligence, or
wrongful act on the part of the
county, its officers, agents, servants
or employees, must be made and
served in compliance with section
fifty-e of the general municipal
law. . . . Every action upon such
claim shall be commenced pursuant
to the provisions of section fifty-i of
the general municipal law.
N.Y. County Law § 52(1). Section 52
incorporates
the
notice
of
claim
requirements contained in New York
General Municipal Law §§ 50-e and 50-i.
Section 50-e requires that a notice of claim
be filed within ninety days of the incident
giving rise to the claim. Moreover, pursuant
to Section 50-i, a plaintiff must plead in the
complaint that: (1) the notice of claim was
served; (2) at least thirty days has elapsed
since the notice of claim was filed and
before the complaint was filed; and (3) in
that time the defendant has neglected to or
refused to adjust or to satisfy the claim. See
Horvath v. Daniel, 423 F. Supp. 2d 421, 423
(S.D.N.Y. 2006).
H. State Law Claims
1. NYSHRL Claims
a. Notice of Claim
Before considering the merits of
plaintiff’s NYSHRL claims, the Court must
address the County defendants’ and
DaSilva’s argument that plaintiff’s conceded
failure to file a notice of claim with the
County requires the dismissal of his
NYSHRL claims. (See County Defs.’ Mem.,
at 23–24; DaSilva Mem., at 22–25.)
“Notice of claim requirements are
construed strictly by New York state courts.
Failure to comply with these requirements
ordinarily requires a dismissal for failure to
state a cause of action.” Hardy v. N.Y.C.
Health & Hosp. Corp., 164 F.3d 789, 793–
94 (2d Cir. 1999) (internal quotations and
citations omitted); see Horvath, 423 F.
Supp. 2d at 423 (“Absent a showing of such
i. Legal Standard
State claims brought under state law in
federal court are subject to state procedural
11
The Court need not consider the County
defendants’ argument concerning the timeliness of
the Section 1986 claim.
25
The Court rejects plaintiff’s first
argument as a matter of law. The New York
Court of Appeals has held explicitly that
“[w]hen an employment discrimination
action is brought against a county under the
State or Federal civil rights statutes, the
failure to timely file a notice of claim shall
be fatal unless the action has been brought to
vindicate a public interest or leave to serve
late notice has been granted by the court.”
Mills v. Monroe Cnty., 59 N.Y.2d 307, 308
(1983). In particular, although the notice of
claim requirement set forth in New York
General Municipal Law §§ 50-e and 50-i
applies only to torts and “does not apply in
cases of employment discrimination brought
pursuant to [the NYSHRL],” it is well
established that New York County Law
§ 52(1) “has broader application than
General Municipal Law § 50-e” and does
apply to NYSHRL claims. Anderson v.
Nassau Cnty. Dep’t of Corr., 558 F. Supp.
2d 283, 303 (E.D.N.Y. 2008) (citing cases);
see also Keating v. Gaffney, 182 F. Supp. 2d
278, 291 (E.D.N.Y. 2001) (holding that
N.Y. County Law § 52, which applies to
claims against a county, “is a much broader
statute than General Municipal Law § 50-e”
and applies to employment discrimination
actions). This Court finds this interpretation
of New York County Law § 52 persuasive
and likewise concludes that the notice of
claim requirement set forth in that statute
a Notice of Claim, the complaint may be
dismissed for failure to state a cause of
action.” (internal quotation omitted)).
Accordingly, for the asserted state law
claims, “[t]he failure to file a notice of claim
is fatal unless the action has been brought in
the public interest, such as a class action
brought to protect civil rights, or a court has
granted leave to serve late notice.” Pustilnik
v. Hynes, No. 99-CV-4087 (JG), 2000 WL
914629, at *6 (E.D.N.Y. June 27, 2000)
(citation omitted).
ii. Application
Plaintiff concedes that he has never filed
a notice of claim in connection with the
instant case. (See Pl.’s Opp’n, at 3–8.)
Nonetheless, plaintiff contends that his
NYSHRL claims should not be dismissed
because (1) the notice of claim requirement
does not apply to claims of employment
discrimination, (2) defendants were on
notice of plaintiff’s claims even though
plaintiff never filed a notice of claim, and
(3) the notice of claim requirement does not
extend to claims against individual
defendants.12 (See id.)
At oral argument, plaintiff’s counsel also cited
Freudenthal v. County of Nassau, 726 N.Y.S.2d 116
(N.Y. App. Div. 2001), and Kushner v. Valenti, 285
F. Supp. 2d 314 (E.D.N.Y. 2003), for the proposition
that the filing of a complaint with the EEOC (or with
the New York State Division of Human Rights)
satisfies the notice of claim requirement. Neither
decision supports that argument. The Court of
Appeals held in Freudenthal (in an opinion affirming
the Appellate Division’s decision) that a petitioner in
an administrative proceeding before the New York
State Division of Human Rights is “not required to
file a notice of claim as a condition precedent to
administrative review of her complaint by the
Division of Human Rights.” Freudenthal v. Cnty. of
Nassau, 99 N.Y.2d 285, 289 (2003) (emphasis
added). Freudenthal has no bearing on the notice of
claim prerequisite to filing a civil action in state or
federal court. In Kushner, Judge Wexler held that a
12
plaintiff’s EEOC filing satisfied the notice of claim
requirement of New York Education Law § 3813.
285 F. Supp. 2d at 316–17. Consistent with other
decisions interpreting Kushner, this Court does not
find Kushner applicable to claims that are not
brought under the New York Education Law. See
Rice v. Wayne Cnty., No. 09-CV-6391T, 2010 WL
4861556, at *4 (W.D.N.Y. Nov. 30, 2010) (limiting
Kushner to claims brought under the New York
Education Law); Cody v. Cnty. of Nassau, 577 F.
Supp. 2d 623, 648 (E.D.N.Y. 2008) (same), aff’d,
345 F. App’x 717 (2d Cir. 2009).
26
covers employment discrimination claims
brought under the NYSHRL.
Supp. 2d 176, 200 (E.D.N.Y. 2006) (citing
cases). This Court does not have the power
to grant such a request.
Second, the Court cannot excuse
plaintiff’s failure to file a notice of claim in
this case. This action, in which plaintiff
seeks to vindicate his private interests, does
not fit within the limited public interest
exception. See, e.g., Feldman v. Nassau
Cnty., 349 F. Supp. 2d 528, 539 (E.D.N.Y.
2004)
(“Plaintiff’s
allegations
of
discriminatory conduct on the part of the
defendants refer solely to conduct that
affects his interest in employment as a
police officer. Since plaintiff seeks the
enforcement of his private interests, the
public interest exception to the notice of
claim requirement is inapplicable.” (internal
citations omitted)), aff’d, 434 F.3d 177 (2d
Cir. 2006). Moreover, a defendant’s “actual
notice” of plaintiff’s state law claim does
not excuse the failure to file a notice of
claim. See, e.g., Olsen v. Cnty. of Nassau,
No. 05-CV-3623 (ETB), 2008 WL 4838705,
at *2 (E.D.N.Y. Nov. 4, 2008) (“[T]he fact
that the County may have received actual
notice of the plaintiffs’ claims herein
through either their EEOC charges or the
information discovered by the County
during their investigation into those charges
does not relieve plaintiffs of the requirement
of serving a notice of claim upon the County
in order to sustain their New York Human
Rights Law claims.”). A defendant’s “actual
notice” of the claim against it and “an
absence of prejudice” may provide a basis
for a court to grant leave to file a late notice
of claim, Brownstein v. Inc. Vill. of
Hempstead, 859 N.Y.S.2d 682, 686 (N.Y
App. Div. 2008); however, New York
General Municipal Law § 50-e(7) permits
only certain state courts—“the supreme
court or . . . the county court” in certain
counties—to consider and to grant an
application for an extension of time, N.Y.
Gen. Mun. Law § 50-e(7); see, e.g.,
Henneberger v. Cnty. of Nassau, 465 F.
Third, plaintiff’s assertion that the
failure to file a notice of claim does not bar a
claim against an individual defendant is
incorrect as to claims against individuals
sued in their official capacities, but correct
as to claims against them in their individual
capacities. The failure to file a notice of
claim in this case does require the dismissal
of plaintiff’s claims against the individual
defendants in their official capacities. See,
e.g., Keating, 182 F. Supp. 2d at 290
(“County officials, employees, or entities . . .
are subject to the notice of claim provision
as well.”); Anderson, 558 F. Supp. 2d at 303
(“[T]he notice of claim requirements apply
to the plaintiff’s claims against Nassau
County and the individual defendants acting
in their official capacities.”); see also
Pustilnik, 2000 WL 914629, at *7 (E.D.N.Y.
June 27, 2000) (dismissing state law
employment discrimination claim against
individuals who were “[c]ounty officials
subject to the notice of claim provision”). As
for a state law claim against an individual
defendant in his individual capacity, “the
requirements of Sections 50-e and 50-i are
not
conditions
precedent
to
the
commencement of an action against a
county official or employee unless the
county is required to indemnify such
person,” and “[t]he County’s duty to
indemnify these employees turns on whether
they were acting within the scope of their
employment.” Wharton, 2013 WL 4851713,
at *15 (internal citations and quotation
marks omitted); see, e.g., Bielski v. Green,
674 F. Supp. 2d 414, 428 (W.D.N.Y. 2009);
Grasso v. Schenectady Cnty. Pub. Library,
817 N.Y.S.2d 186, 817–18 (N.Y. App. Div.
2006). Because plaintiff has raised a triable
issue of fact as to whether DaSilva acted
outside the scope of his employment in
creating a hostile work environment,
27
plaintiff’s failure to file a notice of claim
does not require the dismissal of his
NYSHRL claims against DaSilva. See, e.g.,
id. However, no reasonable jury could
conclude that any other individual
defendant, including Gruntorad, acted
outside the scope of his or her employment,
even though plaintiff accuses them of
committing unlawful discrimination and
retaliation. Cf. Delaney v. City of Albany,
No. 12-CV-1575 LEK/RFT, 2014 WL
701637, at *6 (N.D.N.Y. Feb. 24, 2014)
(noting that putative intentional torts of
police officers may fall within scope of
employment); Rowley v. City of New York,
No. 00-CV-1793 (DAB), 2005 WL
2429514, at *12 (S.D.N.Y. Sept. 30, 2005).
Accordingly, plaintiff’s failure to file a
notice of claim does require the dismissal of
his NYSHRL claims against all individual
defendants except DaSilva. See, e.g.,
Crippen v. Town of Hempstead, No. 07-CV3478 (JFB)(ARL), 2009 WL 803117, at *16
(E.D.N.Y. Mar. 25, 2009) (dismissing claim
against individual defendant for failure to
file notice of claim where the claim against
the individual defendant “relate[d] solely to
his status as a [Town of Hempstead]
employee, while he was acting within the
scope of his employment”).
e.g., Cruz, 202 F.3d at 565 n.1 (explaining
that the analysis of claims brought under the
state human rights laws is the same as the
analysis used in Title VII claims); Collier v.
Boymelgreen Developers, No. 06-CV-5425
(SJ), 2007 WL 1452915, at *4 (E.D.N.Y.
May 17, 2007) (“The Court’s consideration
of claims brought under [NYSHRL] . . .
parallels the analysis used for Title VII
claims.”). Retaliation claims under the
NYSHRL, like hostile work environment
claims, are generally governed by the same
standards as federal claims under Title VII.
See Schiano v. Quality Payroll Systems, Inc.,
445 F.3d 597, 609 (2d Cir. 2006).
Unlike Title VII, however, “[i]ndividual
liability is sometimes possible” under the
NYSHRL. Mandell v. Cnty. of Suffolk, 316
F.3d 368, 377 (2d Cir. 2003). Specifically,
“a defendant who actually participates in the
conduct giving rise to a discrimination claim
may be held personally liable under the
[NYSHRL]” pursuant to NYSHRL § 296(6),
which “states that it shall be an unlawful
discriminatory practice ‘for any person to
aid, abet, incite, compel or coerce the doing
of any of the acts forbidden under this
article, or attempt to do so.’” Tomka v.
Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.
1995) (quoting N.Y. Exec. Law § 296(6)).
Contrary to DaSilva’s position, even a coworker (i.e., not a supervisor) may be held
liable under NYSHRL § 296(6), as long as
he actually participated in the conduct
giving rise to the discrimination claim. See
Feingold, 366 F.3d at 158 (“In Tomka, we
found that this language allowed a coworker who ‘actually participates in the
conduct giving rise to a discrimination
claim’ to be held liable under the NYSHRL
even though that co-worker lacked the
authority to either hire or fire the plaintiff.”
(quoting Tomka, 66 F.3d at 1317)); see also
Cohn v. KeySpan Corp., 713 F. Supp. 2d
143, 160 (E.D.N.Y. 2010) (“The Second
Circuit has held that individual liability may
For the reasons stated supra, the Court
dismisses plaintiff’s NYSHRL claims
against the County, all individual defendants
in their official capacities, and all individual
defendants in their individual capacities
except DaSilva, for failure to file a notice of
claim.
b. Merits
i. Legal Standard
The standard that governs hostile work
environment claims brought under Title VII
also governs hostile work environment
claims brought under the NYSHRL. See,
28
be imposed under the NYSHRL on a coworker who ‘actually participates in the
conduct giving rise to a discrimination
claim,’ irrespective of whether that
coworker possessed the authority to do more
than carry out personnel decisions made by
others.” (quoting Feingold, 366 F.3d at 157–
58)).
serve as the basis for a breach of contract
claim.”); Burger v. Litton Indus., Inc., No.
91-CV-0918 (WK)(AJP), 1996 WL 421449,
at *22 (S.D.N.Y. Apr. 25, 1996) (“[T]he
Equal Employment and Opportunity
statements cited by Burger from Litton’s
employment manuals, rather than insuring a
term of employment, simply establish
general anti-discrimination principles. Such
general statements of equal opportunity and
nondiscrimination made in an employment
handbook or manual cannot serve as the
basis for a breach of contract action under
New York law.”), report & recommendation
adopted, 1996 WL 609421 (S.D.N.Y. Oct.
22, 1996); Blaise-Williams v. Sumitomo
Bank, Ltd., 592 N.Y.S.2d 41, 42 (N.Y. App.
Div. 1993) (“[W]e are simply dealing with a
general statement of equal opportunity and
nondiscrimination contained in an employee
handbook. Such a general statement, which
is nothing more than a statement of existing
law concerning discrimination, may not
serve as a basis for a breach of contract
claim.”). Accordingly, the Court grants
summary judgment to all defendants on this
claim.
ii. Application
For the reasons discussed supra, plaintiff
has raised a triable issue of fact as to
whether DaSilva personally participated in
the creation of a racially hostile work
environment. Accordingly, the Court denies
DaSilva’s motion for summary judgment as
to plaintiff’s NYSHRL claim against him.
2. Breach of Contract
Finally, plaintiff asserts a breach of
contract claim against the County and some
of the individual defendants. He premises
this claim upon the County’s alleged breach
of its equal employment policy. (See Pl.’s
Opp’n, at 39–40.) However, under New
York law, an employment handbook’s antidiscrimination and anti-harassment policies
may not serve as the basis for a breach of
contract claim. See, e.g., Willis v. Verizon
N.Y., Inc., No. 11-CV-5078, 2012 WL
2370125, at *6 (E.D.N.Y. June 22, 2012)
(dismissing breach of contract claim based
on employee handbook);
Abdi v.
Brookhaven Sci. Assocs., LLC, 447 F. Supp.
2d 221, 229 (E.D.N.Y. 2006) (“An
employer’s general statements reiterating its
obligation to abide by existing law
concerning discrimination and equal
employment do not serve as the basis for
such a claim.”); Davis v. Oyster Bay-E., No.
03-CV-1372 (SJF)(JO), 2006 WL 657038,
at *15 (E.D.N.Y. Mar. 9, 2006), aff’d, 220
F. App’x 59 (2d Cir. 2007) (“[I]t is equally
well-established that an employer’s antidiscrimination policies and manuals cannot
IV. CONCLUSION
For the reasons set forth herein, the
Court grants in part and denies in part
defendants’ motions for summary judgment.
In particular, the Court grants summary
judgment to the NCSD as to all claims. As
for the Title VII claims, the Court grants
summary judgment for all individual
defendants and denies the County’s motion
for summary judgment in all respects. As for
the Section 1981 and Section 1983 claims,
the Court grants summary judgment for all
individual defendants except for Gruntorad,
against whom plaintiff may pursue a
retaliation claim, grants summary judgment
for the County with respect to the retaliation
claim, and denies the County’s motion for
summary judgment with respect to the
29
hostile work environment claim. The Court
also grants summary judgment for the
County and all individual defendants except
DaSilva on plaintiff’s NYSHRL claims.
Finally, the Court grants summary judgment
for all defendants as to the Title VI, Section
1985(3), Section 1986, and breach of
contract claims.
SO ORDERED.
_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 22, 2014
Central Islip, NY
*
*
*
Plaintiff is represented by Frederick K.
Brewington, Law Offices of Frederick K.
Brewington, 556 Peninsula Boulevard,
Hempstead, NY 11550. All defendants
except DaSilva are represented by Andrew
Kenneth Preston, Deanna Darlene Panico,
and Michael Paul Siravo of Bee Ready
Fishbein Hatter & Donovan LLP, 170 Old
Country Road, Mineola, NY 11501.
Defendant DaSilva is represented by Justin
C. Tan and John Francis McKay, III of Bond
Schoeneck & King, PLLC, 1399 Franklin
Avenue, Suite 200, Garden City, NY 11530.
30
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