Johnson v. County of Nassau et al
Filing
88
ORDER denying 86 Motion for Reconsideration For the reasons set forth herein, defendant DaSilvas motion for reconsideration is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/30/2015. (Mesrobian, David)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-6061 (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
January 30, 2015
___________________
JOSEPH F. BIANCO, District Judge:
By Memorandum and Order dated
September 24, 2014 (hereinafter the
“September 24, 2014 Opinion”), this Court
granted in part and denied in part defendants’
motion for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil
Procedure.
By motion dated September 26, 2014,
defendant Manny DaSilva (“DaSilva”)
requests that the Court re-consider the
September 24, 2014 Opinion. Specifically,
DaSilva contends that the remaining claim
against him—for violating the New York State
Human Rights Law, N.Y. Exec. Law §§ 290 et
seq. (“NYSHRL”), in his individual
capacity—should be dismissed because the
Court granted summary judgment and dismissed
the related NYSHRL claims against his codefendant employer and all other individual codefendant employees in its September 24, 2014
Opinion due to plaintiff Rodney Johnson
(“Johnson,” or “plaintiff”) failing to file a notice
of claim. According to DaSilva, (1) he can only
be found liable under an “aiding and abetting”
theory under Section 296(6) of the NYSHRL,
and (2) an employee can only be found liable
under an “aiding and abetting” theory if the
employer or other employee(s) remain
potentially liable to the same claim, because
an individual cannot aid and abet his own
conduct. Therefore, according to DaSilva,
the dismissal of the NYSHRL claims against
his employer and colleagues means that he
himself cannot be found liable either.
standard for granting a motion for
reconsideration pursuant to Rule 59(e) is “strict,
and reconsideration will generally be denied.”
Herschaft v. N.Y. City Campaign Fin. Bd., 139
F. Supp. 2d 282, 283 (E.D.N.Y. 2001) (internal
quotation omitted).
A motion for
reconsideration is appropriate when the moving
party can demonstrate that the Court
“overlooked controlling decisions or factual
matters that were put before it on the underlying
motion . . . and which, had they been
considered, might have reasonably altered the
result before the court.” Id. at 283-84 (internal
quotation omitted). “Alternatively, the movant
must demonstrate the need to correct a clear
error or prevent manifest injustice.” Id. at 284
(internal quotation omitted).
For the reasons set forth below, the
Court denies DaSilva’s motion for
reconsideration pursuant to Federal Rules of
Civil Procedure 59(e) and 60(b), and Local
Civil Rule 6.3. In particular, it is well settled
that an individual employee can “aid and
abet” his own conduct in violation of the
NYSHRL, in the sense that a defendant can
be held liable for aiding and abetting his
employer’s creation of a hostile work
environment even where his conduct alone
serves as the predicate for the employer’s
vicarious liability. Moreover, the Court
concludes that the dismissal of an NYSHRL
claim against an employer on procedural
grounds does not negate a related claim
against a lone employee for conduct in his
individual capacity, because a plaintiff may
still prove the employer condoned that
conduct even though the employer is not a
defendant.
Local Civil Rule 6.3 provides that a party
moving for reconsideration must “set[] forth
concisely the matters or controlling decisions
which [the party] believes the court has
overlooked.” Id. “The standard for granting [a
motion for reconsideration] is strict, and
reconsideration will generally be denied unless
the moving party can point to controlling
decisions or data that the court overlooked –
matters, in other words, that might reasonably
be expected to alter the conclusion reached by
the court.” Shrader v. CSX Transp., 70 F.3d
255, 257 (2d Cir. 1995); see also Black v.
Diamond, 163 F. App’x 58, 61 (2d Cir. 2006)
(“To merit reconsideration, a movant must point
to law or facts overlooked by the court in its
initial ruling.”); Medoy v. Warnaco Employees’
Long Term Disability Ins. Plan, 97-cv-6612
(SJ), 2006 U.S. Dist. LEXIS 7635, at *4
(E.D.N.Y. Feb. 15, 2006) (“The standard . . . is
strict in order to dissuade repetitive arguments
I. LEGAL STANDARD
Motions for reconsideration of a nonfinal judgment may be filed pursuant to
Federal Rules of Civil Procedure 59(e).1 The
1
The standard regarding motions for
reconsideration under Rule 60(b) of the Federal
Rules of Civil Procedure, by which parties may
seek relief from final judgments, see House v.
Sec’y of Health & Human Servs., 688 F.2d 7, 9
(2d Cir. 1982), is not relevant for the purposes of
this motion.
2
on issues that have already been considered fully
by the Court.”).
F.3d 138, 185 (2d Cir. 2004). The issue
DaSilva presents, then, is whether a Section
296(6) claim can continue against an individual
employee when the same claim against his
employer and colleagues has been dismissed on
procedural grounds.
II. APPLICATION
DaSilva’s motion for reconsideration is
based solely on his legal contention that a
claim against him under Section 296(6) of
the NYSHRL can survive only if a valid
related claim exists against his employer
and/or fellow employees. For the reasons
below, the Court concludes that DaSilva’s
argument is without merit. In particular, the
fact that plaintiff is procedurally barred from
proceeding against the employer does not
prevent him from proving, in connection with
the lawsuit against an individual employee,
that (1) the employer condoned or approved
the discriminatory conduct by the employee,
and (2) the employee is liable under Section
296(6) for aiding and abetting the employer’s
violation.
As an initial matter, a valid claim against
other employees is not a prerequisite for
establishing an individual employee’s Section
296(6) liability. Regardless of whether other
employees contributed to the discrimination,
under Tomka, a plaintiff may succeed in a claim
under the NYSHRL by showing the employer
entity’s having encouraged, condoned, or
approved the discriminatory conduct of a sole
employee – the same discriminatory conduct
which then, perhaps “circular[ly]”, proves
individual liability under the aiding and abetting
provision of Section 296(6).
Lewis v.
Triborough Bridge and Tunnel Auth., No. 97
Civ. 0607 PKL, 2001 WL 46986, at *2
(S.D.N.Y. Jan. 18, 2001) (citations omitted),
aff’d, 31 F. App’x 746 (2d Cir. 2002); see also
Boston v. Taconic Mgmt., No. 12-CV-4077
(ER), 2014 WL 4184751, at *2 n.9 (S.D.N.Y.
Aug. 22, 2014) (“Thus, assuming that the
alleged discrimination can be imputed to
Taconic as Plaintiff’s employer, [the individual
defendant] can be held liable for aiding and
abetting regardless of whether his actions form
the basis for Taconic’s liability in the first
instance.”) (citing Tully-Boone v. N. Shore-Long
Island Jewish Hosp. Sys., 588 F. Supp. 2d 419,
426-27 (E.D.N.Y.)); Conklin v. County of
Suffolk, 859 F. Supp. 2d 415, 436 (E.D.N.Y.
2012) (“Nevertheless, the law in this Circuit
seems clear that a defendant may be held liable
for aiding and abetting allegedly unlawful
discrimination by her employer even where her
actions serve as the predicate for the employer’s
vicarious liability.”); State Div. of Human
Rights on Complaint of Greene v. St. Elizabeth’s
Section 296(6) states that it is unlawful
discriminatory practice “for any person to
aid, abet, incite, compel or coerce the doing
of any of the acts forbidden under [the
NYSHRL], or attempt to do so.” N.Y. Exec.
Law § 296(6). Furthermore, it is well-settled
in the Second Circuit that where a defendant
actually participates in the conduct giving
rise to a discrimination claim, he can be held
personally liable under the statute. Tomka v.
Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.
1995), abrogated on other grounds by
Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 754, 118 S. Ct. 2257, 141 L.Ed.2d 633
(1998) and Faragher v. City of Boca Raton,
524 U.S. 775, 807, 118 S. Ct. 2275, 141
L.Ed.2d 662 (1998) (individuals alleged to
have assaulted plaintiff and created a hostile
work environment can be held liable under
Section 296(6)); Feingold v. New York, 366
3
Hosp, 66 N.Y.2d 684, 687, 487 N.E.2d 268
(1985) (holding that condonation, defined as
calculated inaction, by an employer of an
employee’s discriminatory acts constitutes a
basis for liability under the NYSHRL). To
require the complicity of other employees for
a successful claim would allow a “lone wolf”
bad actor to escape liability because none of
his colleagues committed discriminatory acts
of their own. Moreover, DaSilva’s argument
would cause a discontinuity between Section
296(6)’s aiding and abetting doctrine and its
alternative “supervisory liability” doctrine,
where courts have held that an individual
supervisor who perpetrates the discrimination
can cause the vicarious liability of the
employer and be personally liable under
Section 296(6). See, e.g., Perks v. Town of
Huntington, 96 F. Supp. 2d 222, 228
(E.D.N.Y. 2000) (“Many district courts in
this circuit have cited Tomka for the
proposition that under § 296.6, an individual
may be held liable under the New York
Human Rights Law if the defendant actually
participated in the conduct giving rise to the
claim of discrimination.”) (citations omitted);
Lippold v. Duggal Color Projects, Inc., No.
96 Civ. 5869 (JSM), 1998 WL 13854, at *3
(S.D.N.Y. Jan. 15, 1998) (holding that,
absent clearer guidance from New York state
courts, Tomka enables supervisory individual
liability under Section 296(6)).
in their individual capacities could continue
under Tomka, despite the dismissal of the
NYSHRL claims against the County employer
and the individuals in their official capacities for
the plaintiff’s failure to serve a timely notice of
claim. Humphrey v. County of Nassau, No. 06cv-3682 (JFB)(AKT), 2009 WL 875534, at
*21-22 (E.D.N.Y. March 30, 2009). As
discussed above, the presence of other
individual defendants is not a prerequisite to the
analysis. Simply put, a procedural bar to
seeking liability against an employer does not
prevent claims against an employee in his
individual capacity.
In reaching this decision, the Court
emphasizes that the absence of the employer as
a party to the suit does not relieve plaintiff of its
obligation, as part of its Section 296(6) claim
against the individual employee, of first proving
the liability of the employer. See, e.g.,
Pellegrini v. Sovereign Hotels, Inc., 740 F.
Supp. 2d 344, 356 (N.D.N.Y. 2010)
(“Importantly, since it is the employer’s
participation in the discriminatory practice
which serves as the predicate for the imposition
of liability on others for aiding and abetting, a
plaintiff cannot prevail against an individual on
her state claims unless she can first establish the
liability of her employer.”) (internal citations
omitted). Instead, this Court simply holds that
a plaintiff can still prove involvement by the
employer even if the employer is procedurally
dismissed from the case (or is not brought as a
defendant at all).2 Thus, defendant’s reliance on
Jain v. McGraw Hill Cos., Inc., 827 F. Supp. 2d
272, 277 (S.D.N.Y. 2011), aff’d, 506 F. App’x
47 (2d Cir. 2012) (“[T]he NYSHRL and
The remaining question, then, is whether
an action against an employee under Section
296(6) may continue when a plaintiff is
procedurally barred from seeking a claim
under the NYSHRL against the employer.
The Court concludes that the answer is yes.
In fact, this Court previously held in
Humphrey v. County of Nassau—a case
closely resembling this one—that NYSHRL
claims against multiple individual defendants
2
Of course, as discussed infra, if the plaintiff’s claim
against the employer was dismissed on the merits because
of a lack of proof, the doctrine of collateral estoppel could
impact a plaintiff’s ability to try to prove such liability as
part of a Section 296(6) claim against an individual
employee.
4
Alessi v. New York State Dept. of Corrections
and Cmty. Supervision, No. 12-CV-725S, 2014
WL 1671580, at *3 (N.D.N.Y. Apr. 22, 2014)
(dismissing NYSHRL claims against state and
individual defendant in his official capacity on
sovereign immunity grounds, but denying
dismissal against individual in his individual
capacity); Lamere v. New York State Office for
the Aging, No. 03-CV-356, 2005 WL 1174068,
at *14-15 (N.D.N.Y. Apr. 27, 2005) (same).
NYCHRL require that liability must first be
established as to the employer/principal
before accessorial liability can be found as to
an alleged aider and abettor.”), is misplaced.
This Court’s holding is consistent with Jain
because plaintiff, in the instant case, must
still first establish, or prove, the County’s
liability for condoning DaSilva’s
discrimination before DaSilva can be held
liable as an aider and abettor. However,
nothing in Jain suggests that the County must
be a defendant for plaintiff to prove the
County’s liability as a predicate to DaSilva’s
aiding and abetting liability.
Many of the cases DaSilva cites in support
of his argument are distinguishable because the
NYSHRL claims against the employers were
dismissed on substantive grounds, rather than
procedural. For example, in Alexander, the
claims were dismissed because the school
district had a successful Faragher defense
because the employer had “exercised reasonable
care to prevent and correct promptly any
sexually harassing behavior” and “plaintiff
employee . . . unreasonably failed to take
advantage of any preventive or corrective
opportunities provided by the employer to avoid
harm.” Alexander v. Westbury Free Sch. Dist.,
829 F. Supp. 2d 89, 104-08 (E.D.N.Y. 2011)
(internal quotations omitted) (citing Faragher.
524 U.S. at 806-07). In Raneri, the plaintiff
failed to make any showing of the employer’s
encouragement, condonation, or approval of the
employee’s discriminatory acts. Raneri v.
McCarey, 712 F. Supp. 2d 271, 282 (S.D.N.Y.
2010). Moreover, in Piston, the plaintiff
voluntarily withdrew her claims against the
employer, and the issue of the individual
defendant having acted outside her official
capacity was never raised. Piston v. County of
Monroe, No. 08-CV-6435P, 2012 WL 4490652,
at *6 (W.D.N.Y. Sept. 27, 2012).
A significant majority of courts have
arrived at the same conclusion in similar
circumstances.
See, e.g., Benedith v.
Malverne Union Free Sch. Dist., No. 11-CV5964 (ADS)(GRB), 2014 WL 4056554, at
*17-18 (E.D.N.Y. Aug. 15, 2014)
(dismissing NYSHRL claims against school
district and “school officers” because of
plaintiff’s failure to observe 90-day notice of
claim requirements in Education Law §
3813(1), but allowing claims against nonofficers not subject to Section 3813(1) to
proceed); Reed v. Garden City Union Free
Sch. Dist., 987 F. Supp. 2d 260, 266
(E.D.N.Y. 2013) (same involving only one
individual defendant); Williams v. City of
New York, No. 99 CV 2697 (ARR)(LB),
2006 WL 2668211, at *26-27 (E.D.N.Y.
Sept. 11, 2006) (same involving only one
individual defendant); Ritterband v.
Hempstead Union Free Sch. Dist., No. 06-cv6628 (DRH)(ETB), 2008 WL 3887605, at
*8-9 (dismissing claims against school
district based on incidents allegedly
occurring more than 90 days prior to the
EEOC filing because of the Section 3813(1)
notice of claim requirement, but allowing
them against the individual defendants);
The two cases DaSilva cites for the direct
proposition that an individual defendant cannot
aid and abet his own alleged discriminatory
5
conduct, Reid v. Ingerman Smith, 876 F.
Supp. 2d 176, 186 (E.D.N.Y. 2012) and
Nunez v. Cuomo, No. 11-CV-3457
(DLI)(LB), 2012 WL 3241260, at *20
(E.D.N.Y. Aug. 7, 2012), do not alter this
Court’s conclusion. As a threshold matter,
both Reid and Nunez cite Raneri for the
proposition that an individual cannot aid and
abet his own conduct, without recognizing
that the court held that the plaintiff in that
case failed to make any showing of the
employer’s condonation. Reid, 876 F. Supp.
2d at 176; Nunez, 2012 WL 3241260, at *20.
In that manner, neither Reid nor Nunez
recognizes that the employee under Section
296(6) is not aiding and abetting his own
conduct per se, but rather aiding and abetting
the employer’s violation, based on its
condonation or approval of the employee’s
conduct. At least one other court has
acknowledged that Reid should be limited to
its facts. See Reed, 987 F. Supp. 2d at 266
(“The facts of [Reid] do not apply here. It is
possible for an individual to be liable under
§ 296(6) for ‘actually participating’ in the
discriminatory conduct even thought he or
she lacks the authority to hire or fire the
plaintiffs.”). In any event, to the extent Reid,
Nunez, or any other cases could be construed
as asserting that an individual cannot, under
Section 296(6), aid and abet the employer’s
violation, even through his own conduct, this
Court respectfully disagrees for the reasons
discussed supra.
and 42 U.S.C. § 1983, there are triable issues of
facts as to whether the County encouraged,
condoned, or approved of DaSilva’s alleged
discriminatory conduct creating a hostile work
environment. Those facts, if proven adequately
at trial, would support an individual claim
against DaSilva under Section 296(6). That a
judgment under the NYSHRL cannot be
obtained against the County itself because of
plaintiff’s failure to file a notice of claim does
not preclude plaintiff from attempting to prove
that the County encouraged, condoned, or
approved DaSilva’s alleged discriminatory
conduct and that DaSilva aided and abetted that
violation through his own conduct under Section
296(6).
Accordingly, the Court determines that
defendant has not presented new evidence or
case law that warrants this Court reconsidering
the September 24, 2014 Opinion.
III. CONCLUSION
For the foregoing reasons, DaSilva’s motion
for reconsideration is denied.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
In this case, plaintiff has raised a triable
issue of fact about whether DaSilva acted
outside the scope of his employment in
creating a hostile work environment.
Further, as discussed in the September 24,
2014 Opinion denying the County
defendant’s motion for summary judgment
on plaintiff’s claims under 42 U.S.C. § 1981
Dated:
January 30, 2015
Central Islip, New York
***
Plaintiff is represented by Frederick K.
Brewington, Law Offices of Frederick K.
6
Brewington, 556 Peninsula Voulevard,
Hempstead, NY 11550. 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.
7
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