Kohutka v. The Town of Hempstead et al
MEMORANDUM OF DECISION AND ORDER granting in part and denying in part 43 Motion for Summary Judgment; granting in part and denying in part 45 Motion for Summary Judgment; It is hereby ORDERED that the Defendants motion for summary judgment pur suant to Fed. R. Civ. P. 56 is granted to the extent that the Court (1) dismisses the Plaintiffs Section 1983 First Amendment Retaliation claims against Milone, Allback, Reeke, Bove, and Braccio in their individual capacities; (2) dismisses the Secti on 1983 Equal Protection Hostile Work Environment claims against Allback, Reeke, Bove, and Braccio in their individual capacities; (3) dismisses the Nassau County Human Rights Law claims against the Defendants with prejudice; (4) and dismisses the N ew York State Human Rights Law claims against Bove and Braccio; and it is further ORDERED, that the Defendants motion for summary judgment is denied in that the Court finds that material issues of fact exist as to the Plaintiffs (1) Section 1983 Firs t Amendment Retaliation claims against the Town; (2) Section 1983 Equal Protection Hostile Work Environment claims against the Town and Milone; and (3) New York State Human Rights Law claims as to the Town, Milone, Allback, and Reeke. Accordingly, the Defendants motions for summary judgment dismissing these causes of action are denied. So Ordered by Judge Arthur D. Spatt on 1/29/2014. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
THE TOWN OF HEMPSTEAD, CHARLES
MILONE, JOHN ALLBACK, CHRISTINE
REEKE, DEBRA BOVE, and BRIAN
The Law Offices of Steven Morelli
Attorneys for the Plaintiff
1461 Franklin Ave.
Garden City, NY 11530
Steven A. Morelli, Esq.,
Joshua S. Beldner, Esq., Of Counsel
Jaspan, Schlesinger, & Hoffman, LLP
Attorneys for the Defendants Town of Hempstead, John Allback, Christine Reeke,
Debra Bove, and Brian Braccio
300 Garden City Plaza
Garden City, NY 11530
Lisa Cairo, Esq.,
Laurel R. Kretzing, Esq., Of Counsel
Law Offices of Dennis M. Lemke
Attorneys for the Defendant Charles Milone
114 Old Country Road
Mineola, New York 11501
Lawrence V. Carra, Esq., Of Counsel
SPATT, District Judge.
The Plaintiff in this case, Theresa Kohutka (“Kohutka” or the “Plaintiff”),
commenced this action on April 15, 2011 against the Defendants the Town of
Hempstead (the “Town”), Charles Milone, John Allback, Christine Reeke, Debra
Bove, and Brian Braccio, asserting causes of action pursuant to 42 U.S.C. § 1983;
the New York State Human Rights Law (“NYSHRL”), New York Executive Law
§ 296 et seq. and the Nassau County Human Rights Law (“NCHRL”).
On August 5, 2011, the Defendants moved pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 12(b)(6) to dismiss the complaint for failure to state a
claim upon which relief can be granted. By Memorandum of Decision and Order
dated March 20, 2012, this Court denied that motion.
On October 17, 2013, the Town, Allback, Reeke, Bove, and Braccio moved
pursuant to Fed. R. Civ. P. 56 for summary judgment dismissing the complaint. On
that same day, Milone moved separately for the same relief. The Plaintiff opposes
the respective motions. For the reasons set forth, the motions are granted in part
and denied in part.
A. Factual Background
Unless stated otherwise, the following facts are drawn from the parties Rule
56.1 Statements and the materials submitted therewith. Triable issues of fact are
1. The Parties
On June 8, 1987, the Plaintiff commenced her employment with the Town
as an account clerk at the Town’s Animal Shelter. The Plaintiff was promoted to
clerk typist in 1988, and promoted to Animal Control Officer (“ACO”) in 1989.
The Town is a municipal corporation located in Nassau County established
pursuant to the laws of the State of New York.
Milone is a former employee of the Town who retired on April 29, 2011.
Milone has been a member of the Republican party for 39 years. From 1973 to
1987, Milone was a member of the Island Park Republican club. From 1987 to the
present, Milone has been a member of the Seaford Republican club. Milone held
the position of committee person. A committee person gathers petitions, assists on
campaigns and in fundraising, and brings in new members to the club. Milone has
been the Executive Leader of the Seaford Republican club since 2000. An
Executive Leader is the highest ranking official of the club. For this reason, Milone
is aware of which members of his club are more “active.” (Milone Dep. Tr., at 23.)
Milone began his employment at the Town as an Electrical Service
Supervisor. Less than one year after obtaining employment at the Town, Milone
was appointed to the position of the Third Deputy Commissioner of the Department
of General Services ("DGS").
Between 2003 and October 25, 2010, Milone held the employment title of
Acting Director of the Town’s Animal Shelter. In this capacity, Milone was
responsible for making decisions with respect to disciplinary issues. Milone also
had authority with respect to hiring decisions. As to open civil service positions,
Milone would conduct interviews and make recommendations. However, after
October 25, 2010, Milone had no duties with respect to the Shelter.
Allback is an employee of the town whose current title is ACO. Allback
became a member of the East Meadow Republican club in 1997, and has
maintained membership in that club “on and off” for a number of years.
Reeke is an employee of the town whose current title is ACO. Reeke was a
member of the Bellmore Republican club, and then later joined the Wantagh
Republic Club. Reeke was admittedly “active” in the club until about 2011 or 2012
because, as she testified, “I don't believe in joining things to get positions. I believe
you work for what you earn, not who you know.” (Reeke Dep. Tr., at 17.) Reeke
spoke to Milone about which club she should join. Milone told her that other
employees at the shelter belonged to the Wantagh club, so she joined that club.
Bove is an employee of the town whose current title is Kennel Supervisor I.
From 1986 to 1994, Bove held the position of Kennel person. Bove became an
ACO in 1994. Bove was promoted to Kennel Supervisor I in 2010. Bove does not
have a college degree and never took any management training courses.
In 1986, when Bove first started working at the Town, she joined the Valley
Stream Republican Club. In 2007 or 2008, Bove joined the Malverne Republican
club. Since joining the Malverne club, Bove has been a committee person. Bove
testified that employees at the shelter talked about their respective Republican
Bove became “active” in her club shortly before she took the March 2009
promotional exam. Bove testified that she thought it was important to be affiliated
with a club while seeking a promotion. According to Bove, Milone would often
talk about Republican matters, and she knew that he was very active in the
Republican party. At the time she took the promotional exam, Bove had the
understanding that Milone would be making the selection and Milone knew that
Bove was a member of a Republican club.
Braccio is a part-time employee of the Town. Braccio works at the Town
Animal Shelter as a night watchman.
2. Alleged Hostile Work Environment
All Town employees, including Kohutka and Allback, received training with
respect to the Town’s policy prohibiting sexual harassment in the workplace.
Kohutka received this training in 1993 and 2008. Despite this training, a number of
troubling incidents, some of which are undisputed, arose involving the parties and
other Town employees, beginning with an incident on April 16, 2008.
Prior to that date, Kohutka and Allback were friends, went camping
together, and were civil to each other. Allback testified that he had a sexual
relationship with Kohutka over the course of a year which ended in December
2007. Records of Allback’s cellphone demonstrate that, during 2007, Kohutka and
Allback contacted each other via the telephone more than 2,000 times. Kohutka
denies that she had a sexual relationship with Allback.
On April 16, 2008, an unusually vicious argument erupted between four
Shelter employees: Kohutka, Allback, Reeke, and Ken Morrison, an ACO who was
Kohutka’s romantic partner at the time. The argument began because, according to
Kohutka, she wanted to give Allback a “dig” based on the fact that, a few days
earlier, Reeke and Allback gave one of their supervisors, Pat Horan, a 50th birthday
gift. (Kohutka Dep. Tr., at 35.) Kohutka “knew this was a . . . butter-up thing, so
she called (Allback) out on it [on April 16, 2008] and he got upset.”
That day, in order to give Allback the “dig,” Kohutka brought a soda and
bag of chips for another supervisor, Gary Shaw, for his birthday. Kohutka
presented the gift to Shaw in the presence of Reeke, Allback and Bove, among
others. Kohutka said, “I don’t have to sneak around to butter up the boss.” By
giving Shaw the card, the Plaintiff admittedly intended to provoke a response from
Allback responded, calling Kohutka a “f***ing c*unt” in front of multiple
supervisors and approximately seven employees, after which Kohutka told Allback
to “chew your fucking fingers off.” (Id. at 29.)
According to Allback and Reeke, Kohutka provoked the comment from
Allback by calling him a “sneaky pussy” (Allback Dep. Tr., at 23.), a comment
which Kohutka does not recall making.
In any event, an argument ensued between several employees. At one point,
Morrison and Kohutka made comments regarding Reeke’s personal problems
relating to bulimia and cutting, which she had previously confided about to
Kohutka. However, Kohutka claims that she attempted to diffuse the situation by
pushing Morrison out of the room.
In response to the incident, the supervisors who had witnessed it, John
Christianson and Shaw, called all four participants into their offices separately;
admonished them about their behavior and the personal nature of the comments to
each other; and drafted an Incident Report. Kohutka testified that she met
separately with Milone, at his request. The Plaintiff told Milone that she was
offended by the comments made by Allback.
However, in response to Milone’s question as to whether she wanted to
press charges against Allback, the Plaintiff declined. Milone did not attempt to
encourage Kohutka to press charges or file a formal complaint. Rather, Milone
testified that he believed that there was a formal investigative report prepared
regarding the incident, but he never saw a copy.
Milone also met with Allback privately on April 16, 2008 and told Allback
that he could not use that type of language in the workplace.
Special Investigator Raymond Enright did not conduct an investigation into
the April 16, 2008 incident until May 14, 2008, at which point Enright advised
Allback that he could not use that type of language at the workplace. Enright did
not prepare a report regarding the incident. According to Enright, his investigation
into the incident "didn't last long." (Enright Dep. Tr., at 29.). Enright testified that,
once Allback admitted to making the comment, there was no reason to further
investigate the matter. Enright is also a registered Republican.
Enright testified that it is part of his duties and responsibilities to write
memoranda; report his findings; and to make recommendations regarding
discipline. Following an investigation, Enright customarily informs the
complainant of the resulting findings and the punishment, if any. However, for
purposes of the April 16, 2008 incident, Enright could not recall informing the
Plaintiff of his findings. Nor did Enright recommend that Allback be disciplined,
and Allback was, in fact, not disciplined. Instead, Milone advised Allback to avoid
Following the April 16, 2008 incident, at least four anonymous letters were
circulated throughout various Town offices. The letters concerned Allback;
referenced the April 16, 2008 incident; and accused him of (1) sexual harassment of
women in the workplace and (2) sexual relations with Reeke during the work day,
as well as accused Milone of permitting this sexual harassment to continue. The
Plaintiff denies writing any of the letters.
Based on the accusations set forth in an anonymous letter on May 14, 2008,
Enright launched an investigation of Allback. Numerous witnesses stated to
Enright that they believed Kohutka authored the anonymous letters; that Kohutka
was a flirt; and that she had exposed her breasts and her butt in the workplace. The
Plaintiff denies these allegations. The Plaintiff concedes showing a co-worker a
tattoo on her back, but claims that such acts were commonplace at the shelter.
Approximately two months after the anonymous letter was distributed,
Allback alleged to Enright that Kohutka had previously grabbed his testicles while
he was talking to Horan about a medical problem he was having. The Plaintiff
denies this allegation. Kohutka was ultimately suspended for three days based on
the allegation that she grabbed Allback’s testicles. However, on October 21, 2008,
at a subsequent hearing related to this incident, the charge was dismissed against
Kohutka in its entirety, and her suspension was reversed. Allback was never
disciplined for making these allegations. The Plaintiff testified that Allback
accused her of grabbing his testicles in order to “make me look bad, supervisors test
was coming out, to put me in a bad light.” (Kohutka Dep. Tr., at 40.)
Thereafter, the relationship between Kohutka, Reeke, Allback, and their
respective friends and supporters in the workplace deteriorated.
For example, on June 30, 2009, the keys to the Plaintiff’s personal car were
stolen and never returned to her. The day her keys were stolen, Kohukta had left
the keys on a desk at the animal shelter near where Reeke sat. The Plaintiff alleges
that Allback and Reeke were responsible for the keys disappearing. The Plaintiff
filed a police report regarding the missing keys, but the keys were never found.
The Plaintiff also alleges that, on a daily basis, Reeke and her friend would
congregate by the Plaintiff’s truck when she pulled into the parking lot, and stand in
her way as a means of intimidating her. The Plaintiff also claims that Reeke would
spit at her as she walked by. As reprisal for harassment that the Plaintiff felt she
received from her co-workers, the Plaintiff admitted to doing “stupid little things,”
such as moving her coworkers’ paperwork.
On July 28, 2009, the Plaintiff attended a Republican dinner with several of
her co-workers. At this dinner, Reeke apparently accused Kohutka of having an
affair with Mike Errico, Kohutka’s former work partner. Reeke related this
information to Milone, which greatly upset Kohutka because she was close friends
with Erricos’ wife. Kohutka claims that Milone told her to “shrug it off,” because
he thought she had “thick skin.” (Id. at 206-07, 56.) Kohutka testified that the
incident occurred offsite and, thus, she thought filing a formal complaint would
have been futile.
Kohutka further alleges that Bove tailgated her for seven miles on July 27,
2010. Kohutka states that she was in fear at the time and that Errico witnessed the
incident. Kohutka claims that this incident constituted harassment based on her
gender because Bove “doesn’t have the balls enough” to tailgate a man.
On July 28, 2010, Kohutka approached her work truck and noticed that the
box number tag on her gun box, which contained all of her drugs and tranquilizer
guns, was clipped. Kohutka complained about the incident to Milone and told
Milone that she believed it was done by Allback and Reeke in retaliation for
mentioning their names when she previously spoke to Milone. However, again,
nothing was done about this incident.
On December 10, 2010, a community representative named Joanne
Miranda, who is politically active in the Republican party, confronted the Plaintiff
at a union Christmas party. The Plaintiff claims that Miranda called her a “f***ing
bitch.” (Id. at 88.). The Plaintiff alleges that the Town never reprimanded Miranda
for this remark.
After leaving the Christmas party, Kohutka’s car was pulled over and her
husband was asked to do a field sobriety test. Kohutka alleges that Miranda had
called her contact at the Nassau County Police Department to tell them that
Kohutka’s husband had been drinking at the party and was now driving home
drunk. Kohutka wrote to the New York State Police Department concerning her
husband and her family getting pulled over and scrutinized. Kohutka alleges that
she received no response from the New York State Police Department with regard
to the letter.
The Plaintiff mentioned this incident to Milone but did not ask him to
investigate it or discipline anyone and did not tell any other supervisors.
On February 23, 2011, based upon a complaint by Reeke and after an
investigation by Enright, Kohutka was disciplined for striking Reeke at the shelter
and letting a “nasty” dog attack her. Reeke testified that Kohutka was jealous of
her because she and Allback were involved in a sexual relationship and Kohutka
had previously had a sexual relationship with Allback. Kohutka claims that the
accusations were untrue. Kohutka received a three-day suspension which she
thereafter appealed. The suspension was reduced but not rescinded after a hearing
before the Town Disciplinary Review Board.
3. Alleged Deprivation of Freedom of Speech and Association
The Plaintiff also claims that she was denied overtime opportunities during
her employment. In December 2009, Braccio was working as a watchman, which is
the individual who calls the ACOs to work overtime at nights or on the weekends.
The Plaintiff alleges that Braccio repeatedly passed over Kohutka when making
calls from the overtime work list. Upon learning that she was being deprived of
overtime pay, Kohutka called Braccio to ask why she was not being called for
overtime work. Braccio reported to Milone that Kohutka had called and yelled at
him. Kohutka was written up for this incident, but Braccio was never disciplined or
punished for his actions.
The Plaintiff testified that Braccio discriminated against her because she
was a woman and because she was “not in the political crowd.” The Plaintiff was
called for overtime by night watchman other than Braccio. Braccio insists that he
skipped over Kohutka on the overtime list because she told him that because she
lived in East Northport, she did not want to be called at night to return to Nassau
Dominick Acuri, the Shelter Maintenance Supervisor, told Milone that the
overtime list was followed correctly and that Kohutka had requested in the past not
to be called. The Plaintiff notes that Acuri is a member of the Republican party.
The Plaintiff alleges that Horan gave extra overtime to Allback, Reeke, and others
because they were more politically active than the Plaintiff.
The Plaintiff spoke with Enright about these allegations but Enright did not
complete a written report regarding any investigation that he conducted into the
unfair overtime allegations raised by the Plaintiff. The Plaintiff also complained to
then Town Commissioner Bruce Halbert about how the overtime list was being
used and that she was being skipped over for overtime work.
On February 24, 2011, within two weeks of the Plaintiff’s complaint to the
Town Commissioner regarding the distribution of overtime, Kohutka was told that
she was being written up and was being suspended for three days without pay.
Kohutka was told that she was being written up because of another incident.
However, Kohutka alleges that she was written up for complaining about the unfair
allotment of overtime work.
The Plaintiff also alleges that, during her employment, representatives of the
Town, including Milone, consistently encouraged her to be active in the local
Republican Party. Kohutka alleges that, although it was not usually openly
discussed, it was known among all the Town employees that it was necessary for
them to be involved with the Republican Party if they wanted to get promoted or
otherwise advance in their jobs.
In March 2009, the Plaintiff took the supervisor test, an examination to
qualify for a promotion to a supervisor position. Kohutka alleges that, about this
time, although she does not state precisely when, Milone told her that in order to be
promoted, she should get more involved in the Town Republican Party. Kohutka
claims that because Milone was part of the committee who hired and promoted
employees in the Town, this statement demonstrated a clear quid pro quo between
Republican involvement and advancement in her position. The Plaintiff alleges that
although she initially joined the Town Republican Club and attended some
Republican Club events, she decided she did not want to be actively involved in the
Republican Party and thus she stopped attending political meetings.
In August 2009, the Plaintiff was notified that she received the highest grade
on the supervisor test. Kohutka alleges that she believed that earning the highest
grade would help her attain the supervisor position, because the last time Kohutka
took the test, the person with the highest score was promoted to a supervisory
position. However, in November 2010, Bove was given the supervisor position
over the Plaintiff, although Bove had received the second highest score on the
supervisor test. At an unspecified time, Bove’s husband, Guy, was promoted to a
supervisor position, even though he also had a lower score than Kohutka on the
supervisor test. According to the Plaintiff, both Bove and Guy are actively involved
in the Republican Party. By contrast, at the time the promotional exam was given,
the Plaintiff was not politically active at all.
Further, according to a promotional list, Kohutka had more “seniority
credit” than both Bove and Guy. Indeed, while the Plaintiff was promoted to the
ACO position in 1989, Bove assumed that position five years later, in 1994.
Kohutka claims that Milone told her that Bove was “politically pushing” for
the supervisor position. Milone testified that he did not tell the Plaintiff to join a
club nor did he tell her to become more activity politically.
Bove testified that she became active in the Malverne Republican club
because she was seeking a promotion. Bove testified that she thought it was
important to be affiliated with a club while seeking a promotion. The Plaintiff
alleges that Horan told her that the Plaintiff would probably have a difficult time
obtaining the position because Bove held the position of “committee person” in her
local republican club.
Having been passed over for a promotion, Kohutka was deprived of a higher
4. The Plaintiff’s Current Employment Status
From March 22, 2011, Kohutka has been on administrative leave from her
position as an ACO and has been assigned to the CSEA Local 880 (“CSEA”) office.
CSEA is a union that represents Town employees. Kohutka’s current placement
with the CSEA is the result of her agreement to such placement after consultation
with Charles Sellitto, the CSEA president, shortly before this lawsuit was
commenced. Kohutka has not submitted a formal request to be reassigned to the
Shelter. The Plaintiff did discuss the option of returning to the shelter in May 2011,
but Selitto stated that if she returned, the work environment would be hostile, and
suggested that it would be in her best interest to remain at CSEA.
B. Procedural History
On April 15, 2011, Kohutka filed the instant complaint against the Town,
Milone, Allback, Reeke, Bove, and Braccio, asserting that the Defendants violated
42 U.S.C. § 1983 with regard to her First Amendment and Fourteenth Amendment
rights, the NYSHRL, and the NCHRL. On August 5, 2011 pursuant to Fed. R. Civ.
P. 12(b)(6), the Defendants filed a motion to dismiss the complaint in its entirety for
failure to state a claim.
By Memorandum of Decision and Order dated March 20, 2012 (“Mem &
Order”), this Court denied that motion. Of relevance here, the Court first found that
the Plaintiff adequately pled that her alleged conduct in not affiliating with a
political party qualified as activity protected under the First Amendment. The
Court further found that the Plaintiff adequately pled an adverse employment action
in that she was passed over for a promotion.
As to the denial of overtime opportunities, the Court noted that “[t]here is
nothing to suggest that these overtime opportunities held any relation to Kohutka’s
professional growth or to any career advancement.” (Mem & Order, at 14-15.)
“Nevertheless,” the Court determined, “allegations that she was being denied
overtime pay, even on one occasion, may be sufficient to deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights so as
to constitute an adverse employment action.” (Id. at 16.) Therefore, the Court
concluded, the Plaintiff adequately pled an adverse employment action in that she
was denied overtime opportunities.
The Court also found that the Plaintiff sufficiently alleged a causal
relationship between the Plaintiff’s protected activity and the fact that she was
passed over for a promotion. In this regard, the Court noted that the two individuals
who were promoted over Kohutka were allegedly actively involved in the
Republican Party, and both were promoted over Kohutka even though both received
lower grades on the supervisor exam. Accordingly, the Court found that the
Plaintiff pled a prima facie case of first amendment discrimination.
However, the Court declined to find that the Plaintiff adequately pled the
requisite causal relationship between her protected activity and the denial of
overtime opportunities. In this regard, the Court emphasized that the Plaintiff failed
to allege any circumstances in which Braccio was aware of her lack of political
Turning to the Defendants’ burden to articulate a legitimate nondiscriminatory reason, the Court acknowledged the Defendants’ argument that the
Town acted within its rights under New York Civil Service Law when promoting
someone other than the Plaintiff to supervisor. However, the Court found that the
Defendants could not prevail at the motion to dismiss stage by merely alluding to
possible non-retaliatory reasons for their conduct, which may ultimately be shown
to be pretext, particularly where, as here, it was unclear where Guy ranked on the
The Court next considered the Plaintiff’s Section 1983 Equal Protection
claims for creating a hostile work environment based upon the Plaintiff’s gender
and political associations. The Court held that, viewing the totality of the
circumstances, Kohutka pled a series of incidents that were sufficiently hostile or
abusive based on political affiliation and gender. Indeed, the Court noted that the
confrontation between the Plaintiff and Allback and his subsequent false
accusations of unwanted sexual conduct, standing alone, would likely suffice to
state a hostile work environment claim.
The Court further found that Plaintiff stated a claim for her Section 1983
First Amendment retaliation and Equal Protection Hostile Work Environment
claims against the Town on the theory of Monell liability.
Finally, the Court found that the Plaintiff could continue to pursue her state
law claims under the NYHRL and NCHRL based upon gender-related
On October 17, 2013, the Town, Allback, Reeke, Bove, and Braccio moved
pursuant to Fed. R. Civ. P. 56 for summary judgment dismissing the complaint. On
that same day, Milone moved separately for the same relief. The Plaintiff opposes
the respective motions.
A. Legal Standard on a Motion for Summary Judgment
“Summary judgment pursuant to Rule 56 is only appropriate where
admissible evidence in the form of affidavits, deposition transcripts, or other
documentation demonstrates the absence of a genuine issue of material fact, and
one party's entitlement to judgment as a matter of law.” Clarke v. Nassau Health
Care Corp., 08-CV-2400 (DRH)(GRB), 2013 WL 6572540, at *3 (E.D.N.Y. Dec.
13, 2013). No genuinely triable factual issue exists when the moving party
demonstrates, on the basis of the pleadings and submitted evidence, and after
drawing all inferences and resolving all ambiguities in favor of the non-movant, that
no rational jury could find in the nonmovant's favor. Chertkova v. Conn. Gen. Life
Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c).)
To defeat a summary judgment motion properly supported by affidavits,
depositions, or other documentation, the non-movant must offer similar materials
setting forth specific facts that show that there is a genuine issue of material fact to
be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant
must present more than a “scintilla of evidence,” Delaware & Hudson Ry. Co. v.
Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S.
at 252), or “some metaphysical doubt as to the material facts,” Aslanidis v. U.S.
Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986)), and cannot rely on the allegations in his or her pleadings, conclusory
statements, or on “mere assertions that affidavits supporting the motion are not
credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal
In considering a summary judgment motion, the district court must also be
“mindful of the underlying standards and burdens of proof,” Pickett v. RTS
Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252),
because the evidentiary burdens that the respective parties will bear at trial guide
district courts in their determination of summary judgment motions. Brady v. Town
of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will
bear the ultimate burden of proof on an issue at trial, the moving party's burden
under Rule 56 will be satisfied if he can point to an absence of evidence to support
an essential element of the nonmovant's claim. Id. at 210–11. Where a movant
without the underlying burden of proof offers evidence that the non-movant has
failed to establish her claim, the burden shifts to the non-movant to offer
“persuasive evidence that [her] claim is not implausible.” Id. at 211 (citing
Matsushita, 475 U.S. at 587.)
Summary judgment is generally inappropriate where questions of the
defendant's state of mind are at issue, Gelb v. Bd. of Elections of the City of N. Y.,
224 F.3d 149, 157 (2d Cir. 2000), and should thus be granted with caution in
employment discrimination cases. Gallo v. Prudential Residential Servs., Ltd.
P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Carlton v. Mystic Transp., Inc., 202 F.3d
129, 134 (2d Cir. 2000). Nonetheless, “summary judgment remains available to
reject discrimination claims in cases lacking genuine issues of material fact.”
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994). “The summary
judgment rule would be rendered sterile . . . if the mere incantation of intent or state
of mind would operate as a talisman to defeat an otherwise valid motion.” Meiri v.
Dacon, 759 F.2d 989, 998 (2d Cir. 1985). “[T]he salutary purposes of summary
judgment - avoiding protracted, expensive and harassing trials - apply no less to
discrimination cases than to commercial or other areas of litigation.” Id. “When no
rational jury could find in favor of the nonmoving party because the evidence to
support its case is so slight, there is no genuine issue of material fact and a grant of
summary judgment is proper.” Gallo, 22 F.3d at 1224.
B. As to the Section 1983
Section 1983 “is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States
Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S.
137, 144 n.3, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979). For claims under Section
1983, a plaintiff must prove that “(1) the challenged conduct was attributable at
least in part to a person who was acting under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed under the Constitution of the United
States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citation omitted).
Section 1983 claims against individuals in their personal capacity pursuant
to 42 U.S.C. § 1983 “ordinarily require[ ] that the [defendant] be a supervisor or
have some position of authority or control over the plaintiff.” Quinn v. Nassau
County Police Dep't, 53 F. Supp. 2d 347, 355 (E.D.N.Y. 1999) (citing cases).
“Otherwise, it is difficult to establish that the abusive action was perpetrated ‘under
color of state law’ rather than as an essentially private act . . . .” Id. (citation
omitted). Where the individual defendant is merely a co-worker of the plaintiff,
such claims are routinely dismissed for failure to state a claim. See id. (dismissing
claim against co-employee on grounds that co-employee “was not acting ‘under
color of state law’”); see also Pugliese v. Long Island R.R., No. 01 CV 7174, 2006
U.S. Dist. LEXIS 66936, at *20-21, 2006 WL 2689600 (E.D.N.Y. Sept. 19, 2006)
(finding that defendant was “a subordinate, not a supervisor, of [the plaintiff], and
hence is immune from Plaintiff's § 1983 claims”).
The “Plaintiff has not suggested that [Allback, Reeke, Bove, and Braccio]
held supervisory authority over her, or that [they] utilized [their] authority or
position in sexually harassing her.” Williams v. City of New York, 99 CV
2697(ARR)(LB), 2006 WL 2668211, at *28 (E.D.N.Y. Sept. 11, 2006). Therefore,
the Court concludes that Allback, Reeke, Bove, and Braccio were not acting under
color of state law, and grants summary judgment to these Defendants as to the
Section 1983 claims against them.
The Court reaches the same conclusion as to Milone, at least with respect to
the Plaintiff’s First Amendment retaliation claim against Milone. Indeed, while
Milone exercised supervisory authority over the Plaintiff, it is undisputed that he
left the shelter one month prior to the position being awarded to Bove and played
little if any role as to the promotion. Thus, the Court grants summary judgment to
Milone as to the Section 1983 First Amendment claim. However, as explained
later, the Court reaches a different conclusion with respect to the Section 1983
Equal Protection Hostile Work Environment claim against Milone.
Further, although Allback, Reeke, Bove, and Braccio may not be held
individually liable under Section 1983 for their conduct, the Court may consider
their conduct in support of the other claims against the Defendants.
1. 1983 First Amendment Retaliation
The Second Circuit has “described the elements of a First Amendment
retaliation claim in several ways, depending on the factual context.” Williams v.
Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008). Where a plaintiff is a public
employee and brings a Section 1983 claim based on allegations of retaliation for
speech or association protected by the First Amendment, as in the present case, the
three-part test articulated in Scott v. Caughlin, 344 F.3d 282 (2d Cir. 2003) provides
the relevant inquiry. See Martir v. City of New York, No. 07 Civ. 7922, 2009 WL
2191332, at *5 (S.D.N.Y. July 23, 2009).
To establish a prima facie case of First Amendment retaliation, a plaintiff
must show that (1) the speech or conduct at issue was protected; (2) the defendant
took adverse action against the plaintiff; and (3) there was a causal connection
between the protected speech and the adverse action. Scott, 344 F.3d at 287.
Furthermore, “the causal connection must be sufficient to warrant the inference that
the protected speech was a substantial motivating factor in the adverse employment
action.” Anemone v. Metropolitan Transp. Authority, 410 F. Supp. 2d 255, 267
(S.D.N.Y. 2006) (quoting Morris, 196 F.3d at 110) (internal citations omitted).
If the plaintiff can produce evidence supporting these three elements, a
defendant can, nonetheless, prevail on a motion for summary judgment based on
two different rationales. First, the defendant can prevail by demonstrating that it
would have taken the same adverse action in the absence of the protected speech.
See Cotarelo v. Village of Sleepy Hollow Police Department, 460 F.3d 247, 252 (2d
Cir. 2006). Alternatively, the defendant can show that the employee's speech was
likely to sufficiently disrupt government activities so as to outweigh the First
Amendment value of the plaintiff's speech. Locurto v. Giuliani, 447 F.3d 159, 172
(2d Cir. 2006).
If the defendant does so, then the burden shifts back to the plaintiff to
demonstrate by competent evidence that “the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for [retaliation].” Patterson v.
Cnty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004).
a. Whether the Plaintiff’s Speech or Conduct was Protected
If the First Amendment protects public employees from discharge based on
what the employee has said, then it must also protect an employee from discharge
based on what the employee believes. Branti v. Finkel, 445 U.S. 507, 515, 100 S.
Ct. 1287, 1293, 63 L. Ed. 2d 574 (1980). Therefore, unless there is an overriding
interest and a vital importance requiring an employee’s private beliefs to conform to
those of the employers, the employee cannot be retaliated against for her beliefs.
Id. at 515-16, 100 S. Ct. at 1293. Furthermore, it is sufficient for the employee to
prove that she was retaliated against for the sole reason that she was not affiliated
with, or sponsored by, a certain political party. Id. at 517, 515 S. Ct. at 1294 (citing
Elrod v. Burns, 427 U.S. 347, 350, 96 S. Ct. 2673, 2678, 49 L. Ed. 2d 547 (1976).
Here, the Plaintiff claims that she exercised a constitutionally protected right
when she decided to no longer attend Republican club political meetings and thus
not actively engage in the party. The Defendants do not dispute that choosing not
to be an active member in the Republican Party is protected conduct. The Supreme
Court held in Rutan v. Republican Party of Illinois that “the First Amendment
forbids government officials to discharge or threaten to discharge public employees
solely for not being supporters of the political party in power.” 497 U.S. 62, 64, 110
S. Ct. 2729, 2732, 111 L. Ed. 2d 52 (1990) (citing Elrod v. Burns, 427 U.S. 347, 96
S. Ct. 2673, 49 L. Ed. 2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S. Ct.
1287, 63 L. Ed. 2d 574 (1980)). See DeLeon v. Little, No. 94 Civ. 902, 1999 WL
1490299, *4 (D. Conn. Sept. 29, 1999) (noting that the Supreme Court has made it
clear that a public official may not take adverse action against a subordinate for not
being a supporter of a political party).
Therefore, the Court finds that the Plaintiff has established that her alleged
conduct in not affiliating with a political party is protected activity under the First
b. Whether the Plaintiff Suffered an Adverse Employment
“In the First Amendment context . . . plaintiffs need only show that the
retaliatory conduct in question would deter a similarly situated individual of
ordinary firmness from exercising his or her constitutional rights.” Nixon v.
Blumenthal, 409 Fed. App’x 391, 392 (2d Cir. 2010) (quoting Zelnik v. Fashion
Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006)) (internal citations omitted).
“Adverse employment actions include discharge, refusal to hire, refusal to promote,
demotion, reduction in pay, and reprimand.” Frisenda v. Incorporated Vill. of
Malverne, 775 F. Supp. 2d 486, 510 (quoting Morris v. Lindau, 196 F.3d 102, 110
(2d Cir. 1999)). “However, lesser actions may also be considered adverse
employment actions.” Id. (internal citations omitted); see also Phillips v. Bowen,
278 F.3d 103, 109 (2d Cir. 2002) (“Our precedent allows a combination of
seemingly minor incidents to form the basis of a constitutional retaliation claim
once they reach a critical mass.” (citing Bernheim v. Litt, 79 F.3d 318, 324-25 (2d
Cir. 1996)). Nevertheless, for “lesser actions” to constitute an adverse employment
action, they “must be more disruptive than a mere inconvenience or an alteration of
job responsibilities.” Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d
199, 207 (2d. Cir. 2006) (quoting Williams v. R.H. Donnelley Corp., 368 F.3d 123,
128 (2d Cir. 2004)) (emphases omitted).
Here, the Plaintiff proffers evidence that, although she received the highest
score on the supervisor test, she was passed over for the supervisor position because
she was not actively involved in the Republican Party. The Defendants do not
dispute that the Plaintiff was not promoted, and that the promotion instead went to
Bove. Nonetheless, the Defendants appear to assert that the Plaintiff did not suffer
an adverse employment with respect to the position awarded to Guy because Guy
was not officially promoted in 2010, but rather, assumed the Kennel Supervisor title
in 2012, while the Plaintiff was working at the CSEA. However, the Court finds
that there is at least a triable issue of fact as to whether Bove was given supervisory
responsibilities in 2010 while the Plaintiff was still working at the shelter.
The Supreme Court has held that “[e]mployees who find themselves in
dead-end positions due to their political backgrounds are adversely affected. They
will feel a significant obligation to support political positions held by their
superiors, and to refrain from acting on the political views they actually hold, in
order to progress up the career ladder.” Rutan, 497 U.S. at 73, 110 S. Ct. at 2736
(emphasis omitted). Here, after Kohutka was not promoted, she was unable to
reach a higher pay grade.
Therefore, the Court finds that the Plaintiff has established, for purposes of
these motions, an adverse employment action in that she was passed over for a
c. Causal Connection
The Defendants argue that the Plaintiff has failed to establish the requisite
causal connection between her protected speech and her being passed over for the
promotion. A causal connection between the speech and the adverse action must
exist “so that it can be said that [the action] was a motivating factor in the
determination.” Morris, 196 F.3d at 110. A causal connection between the
protected speech and the adverse employment action can be established “either
indirectly by means of circumstantial evidence, for example, by showing that the
protected activity was followed by adverse treatment in employment, or directly by
evidence or retaliatory animus.” Id. However, “[t]he plaintiff’s initial burden is not
insignificant and he [or she] cannot rely solely on the fact that he [or she] was
affiliated as a Republican fired by an incoming Democrat administration.
Furthermore, it is imperative to show that the defendants knew of the plaintiff’s
political affiliation.” O’Connell v. Gorski, 715 F. Supp. 1201, 1203 (W.D.N.Y.
1989) (internal citations omitted).
A plaintiff may also rely on the temporal proximity of the protected action
and the adverse employment action. See Donovan v. Incorporated Village of
Malverne, 547 F. Supp. 2d 210, 218 (E.D.N.Y. 2008) (citing Gorman-Bakos v.
Cornell Coop. Extension, 252 F.3d 545, 545-55 (2d Cir. 2001)). In the
determination of the existence of a causal connection between the protected speech
and the alleged retaliatory action, the Court is mindful that “[c]ausation generally is
a question for the finder of fact.” DePace v. Flaherty, 183 F. Supp. 2d 633, 638
In this case, there is sufficient evidence in the record from which to infer
that the Plaintiff may have been passed over because of retaliatory animus toward
her based on her protected lack of political affiliation. The Plaintiff testified that
Milone expressly told her to get involved and be active with the local Republican
Party in order to be promoted.
The Defendants assert that Bove and the Plaintiff had a similar relationship
to local politics, and thus, there is no basis to conclude that the promotional
decision was politically motivated. However, there is evidence that Bove and the
Plaintiff’s relationship to local politics differed during the time period at issue in
this case – namely, when the promotional exam was given and the list released. At
that time, the Plaintiff testified, she had ceased all activity within the local
Republican party. By contrast, Bove admitted that she became “active” in her local
Republican club shortly before she took the promotional exam by becoming a
committee person because she knew it was important to be affiliated with a club
while seeking a promotion. The Court takes note of the Plaintiff’s testimony that
Milone told her that Bove was “politically pushing” for the promotion, and “doing
all the right things to get the job, becoming a committee person.”
The Plaintiff also testified that the individual who the Defendants assert
made the promotional decision – Horan – also made comments to the Plaintiff
which demonstrated that the Plaintiff’s lack of political activity played a substantial
role in the decision to appoint Bove instead of her. In particular, Horan allegedly
reiterated that Bove was “pushing politically” for the position, and that the Plaintiff
would likely have a “tough time” obtaining the promotion because Bove had
become a committee person. Contrary to the Defendants’ contention, it is not clear
that Horan’s statement would be hearsay, as Federal Rule of Evidence 801(d)(2)(D)
provides that statements made by a party's agent or employee during the course of
the agent-employee relationship, so called “vicarious admissions,” are not hearsay.
Further, the Defendants’ reliance on Wrobel v. Cnty. of Erie, 692 F.3d 22,
29 (2d Cir. 2012) is misplaced. There, the Second Circuit held that a plaintiff failed
to sustain his burden in the summary judgment context as to whether his
mistreatment was the result of his lack of political allegiance to a new county
administration. The Second Circuit acknowledged that when a new political
administration is installed, “it is to be expected that employees will be fired,
demoted, or transferred soon after the change in administration, with the result that
there is temporal proximity between the change in ‘regime’ and the adverse
employment action.” 692 F.3d at 29. However, here, there is no evidence that the
Plaintiff’s being passed over for a promotion resulted from a customary political
turnover. The testimony of Bove and Reeke support the Plaintiff’s contention that
promotions were based in part on political activity.
In the Court’s view, this case resembles Donovan v. Incorporated Village of
Malverne, where the court found sufficient evidence “from which to infer that [the
Plaintiff] may have been passed over [for a promotion] because of a retaliatory
animus toward him.” 547 F. Supp. 2d 210, 218 (E.D.N.Y. 2008). The court
determined that multiple supervisors had all suggested “that in order to be
promoted, officers were forced to give up their union positions.” Id; see Giacopelli
v. Incorporated Village of Malverne, No. 09 Civ. 848, 2011 WL 6287852
(E.D.N.Y. Dec. 12, 2011) (Spatt, J.) (finding in a case arising from the same facts as
Donovan that there was sufficient evidence to infer a causal connection where
Malverne officials suggested that candidates must leave union positions to be
As multiple supervisors stated in Donovan and Giacopelli to the respective
plaintiffs not to partake in certain protected conduct in order to be promoted, here,
the Plaintiff testified that Milone encouraged her to get involved and be active with
the local Republican Party with the understanding that she would not get promoted
without being politically active. Furthermore, the two individuals who were
promoted over Kohutka were actively involved in the Republican Party, and both
were promoted over Kohutka, even though both received lower grades on the
supervisor exam. Thus, the Court finds the Plaintiff has met her burden to show a
causal connection between her protected first amendment conduct and her being
passed over for a promotion.
d. As to the Defendant’s Purported Non-Discriminatory
Reasons for Its Conduct
Having determined that the Plaintiff has established a prima facie case, the
Court turns to the Defendants' proffer of a legitimate, non-retaliatory reason for
taking their action. Indeed, even if a plaintiff has established a prima facie case of
First Amendment retaliation, a public employer may ultimately avoid liability if it
can demonstrate that it would have taken the same adverse action even absent the
protected speech. Anemone, 410 F. Supp. 2d at 265 (citing Mandell, 316 F.3d at
The Defendants submit evidence that Bove, while second on the Eligible
List, held seniority over the other two candidates. In addition to her seniority, Bove
was recommended by Horan. Assistant Town Attorney Susan Jacobs submitted a
declaration indicating that there was a concern that the Plaintiff would not make an
effective supervisor given her workplace demeanor and the continuing animosity
between her and some of her co-workers who would then become her subordinates.
(Jacobs Decl. ¶ 8.). The Court finds that the Town has discharged its burden of
articulating a non-discriminatory reason for its conduct, and, therefore, the burden
thus shifts to the Plaintiff to demonstrate that the Town’s justification was a pretext
for impermissible retaliation.
The Court finds that the Plaintiff has demonstrated sufficient evidence of
pretext. In particular, the Court observes that, while Bove began working for the
Town one year prior to the Plaintiff, Bove only became an ACO in 1994. On the
other hand, the Plaintiff was promoted to ACO in 1989, and therefore held that
position for approximately five years longer than Bove. In fact, the actual
promotional list contains a separate column specifically dedicated to “Seniority
Credit.” (Plf’s Exh. A.), which indicates that the Plaintiff had more seniority credit
for this position than both Bove and Guy.
As the Supreme Court has held, “[t]he factfinder's disbelief of the reasons
put forward by the defendant . . . may, together with the elements of the prima facie
case, suffice to show intentional discrimination.” St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 511, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Byrnie v. Town of
Cromwell, 243 F.3d 93 (2d Cir. 2001) (summary judgment for defendant was
improper where the defendant's stated reasons for its actions lacked credibility due
to inconsistencies); Williams v. Regus Mgmt. Grp., LLC, 836 F. Supp. 2d 159, 174
(S.D.N.Y. 2011)(“The factfinder may disbelieve the defendant's explanation either
because the facts underlying the explanation are false or because the explanation is
weakened by inconsistencies or logical flaws.”).
As to the Plaintiff’s workplace demeanor, the Court notes that such
considerations could be equally applicable to Bove who, according to the Plaintiff,
tailgated her on one occasion.
In the Court’s view, the Plaintiff has identified serious problems with some
of the Defendants’ justifications for the Plaintiff being passed over for a promotion.
Thus, an issue of material fact exists as to whether the Defendants’ justifications
were a pretext for impermissible First Amendment retaliation under Section 1983.
In sum, the Plaintiff has, for purposes of these motions, established a prima
facie case for First Amendment retaliation because of her choosing to not be a
member of a political party. Her right to so choose is a constitutionally protected
activity; being denied a promotion may constitute an adverse employment action;
and there is an alleged causal connection between the protected activity and the
adverse employment action because the Plaintiff was repeatedly told to join the
Republican Party in order to be promoted. The Court further finds that the
Defendants have satisfied their burden on summary judgment to advance a
legitimate justification for the adverse employment action, but an issue of fact exists
as to whether these justifications were a pretext for impermissible first amendment
retaliation. Thus, the motions for summary judgment dismissing the First
Amendment retaliation claims against the Town are denied.
2. Section 1983 Equal Protection Hostile Work Environment
The Defendants also seek to dismiss the portion of the Plaintiff’s Complaint
in which she asserts Equal Protection claims under Section 1983 against the Town
and Milone for creating a hostile work environment based upon her gender and
political association. See Dawson v. Cnty. Of Westchester, 351 F. Supp. 2d 176,
193 (S.D.N.Y. 2004) (“The Second Circuit has held that claims of sexual
harassment, brought under the Equal Protection Clause, are actionable under §
1983.”) Lange v. Town of Monroe, 213 F. Supp. 2d 411, 423 (S.D.N.Y. 2002) (“A
plaintiff may state a claim under § 1983 for improper sexual conduct that creates a
hostile work environment.”).
“[T]he Equal Protection Clause bars the government from selective adverse
treatment of individuals compared with other similarly situated individuals if ‘such
selective treatment was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of constitutional rights, or malicious
or bad faith intent to injury a person.’” Bizzarro v. Miranda, 394 F.3d 82, 86 (2d
Cir. 2005) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980)).
Therefore, a plaintiff does not need to allege membership in a protected class in
order to state a claim under the Equal Protection clause.
“Because there are no clearly articulated standards in this Circuit with
respect to hostile work environment claims under § 1983, [the Court] must look to
Title VII for significant guidance.” Dawson, 351 F. Supp. 2d at 194. See Hayut v.
State Univ. of N.Y., 352 F.3d 733, 744–45 (2d Cir. 2003) (noting that a § 1983
sexual harassment claim alleging violations of one’s Fourteenth Amendment equal
protection rights that is based on a “hostile environment” theory, is “governed by
traditional Title VII ‘hostile environment’ jurisprudence”); Piccone v. Town of
Webster, No. 09 Civ. 6266, 2011 WL 3322550, at *12 (W.D.N.Y. Aug. 2, 2011)
(“The legal standard governing Plaintiff's hostile work environment claim under the
Equal Protection Clause is similar to that under Title VII.”); Cortes v. City of New
York, 700 F. Supp. 2d 474, 487 (S.D.N.Y. 2010) (“Employment discrimination
claims under Section 1983 that seek to vindicate a plaintiff's Fourteenth
Amendment right to equal protection under the laws are measured against the same
standards as are Plaintiff's Title VII hostile work environment and sex and race
“Consequently, adapting the standards of Title VII to the Equal Protection
Clause, it has been held that a plaintiff makes out an equal protection hostile work
environment claim by showing: (1) intentional harassment, (2) based on sex [or
political affiliation], (3) under color of state law, that is (4) sufficiently extensive to
render the work environment hostile to plaintiff.” Dawson, 351 F. Supp. 2d at 194
(citing Lange, 213 F. Supp. 2d at 423.)
Here, there is no dispute that Milone and the Town acted under color of state
law for purposes of the hostile work environment claims. Therefore, the issue is
whether the Plaintiff has adequately alleged a hostile work environment
intentionally based on her sex or political affiliation. Dawson, 351 F. Supp. 2d at
194 (“Thus, to state an equal protection violation, plaintiffs must demonstrate that:
(1) compared with others similarly situated, they were selectively mistreated; and
(2) that selective treatment was motivated by an intent to discriminate on an
impermissible basis, such as gender.”).
In order to state a prima facie hostile work environment claim, a plaintiff
must plead facts that would tend to show that the complained of conduct: (1) “is
objectively severe or pervasive – that is . . . creates an environment that a
reasonable person would find hostile or abusive”; (2) creates an environment “that
the plaintiff subjectively perceives as hostile or abusive”; and (3) “creates such an
environment because of the plaintiff’s sex [or exercise of constitutional rights].”
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal citations omitted);
Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (“Plaintiff must show not
only that she subjectively perceived the environment to be abusive, but also that the
environment was objectively hostile and abusive.”).
a. The Presence of a Hostile Work Environment
To establish a hostile work environment, in general, a plaintiff must show
that “the workplace is permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)
(internal quotations omitted). The Supreme Court has observed that courts
examining hostile work environment claims should consider “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.” Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597, 605 (2d Cir. 2006) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23,
114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)). “As a general rule, incidents must be
more than episodic; they must be sufficiently continuous and concerted in order to
be deemed pervasive.” Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001).
In other words, “[s]imple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788,
118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).
While single incidents of harassment generally do not create a hostile work
environment, a plaintiff may nevertheless survive summary judgment in a case
involving an allegation of a single instance of harassment by showing that it is
sufficiently severe. See Summa v. Hofstra University, 708 F.3d 115, 126 (2d Cir.
2013) (explaining that Second Circuit case law “establishes that a single incident
can create a hostile environment if it is sufficiently severe”); McGullam v. Cedar
Graphics, Inc., 609 F.3d 70, 79 (2d Cir. 2010) (“[The plaintiff's] claim nevertheless
might survive summary judgment if there were a triable issue as to whether the sole
non-trivial incident occurring within the limitations period was itself of sufficient
severity to support a hostile work environment claim (albeit a truncated claim
premised on that single incident).”) (citing Howley v. Town of Stratford, 217 F.3d
141, 148, 153–56 (2d Cir. 2000))); Howley, 217 F.3d at 153–56 (“Usually, a single
isolated instance of harassment will not suffice to establish a hostile work
environment unless it was ‘extraordinarily severe.’ Thus, the plaintiff must
demonstrate ‘either that a single incident was extraordinarily severe, or that a series
of incidents were sufficiently continuous and concerted to have altered the
conditions of her working environment.’” (citations omitted)).
In this case, there is evidence in the record that, among other things, the
Plaintiff (1) was called a ““f***ing c*nt” in front of several co-workers and
supervisors; (2) was falsely accused of grabbing Allback’s testicles; (3) was falsely
accused of have an affair with Errico; (4) was falsely accused of grabbing Errico’s
testicles; (5) was spit on by Reeke; (6) was called a “f***ing bitch” by Miranda;
(7) had her keys stolen; (8) had her gun box clipped; (9) was tailgated by Bove on a
parkway for seven miles; and (10) was frequently physically surrounded by Reeke
and others when she would drive into the parking lot in the morning. The Plaintiff
suggests that she complained about a number of these instances, such as the
tailgating of her car and her number on her gun box tag clipped, but that nothing
was done about any of them.
To be sure, “many of the Plaintiff’s allegations consist of sporadic conduct
over a two and a half year period, some of which are relatively minor. For example,
having the number tag on her gun box clipped, standing alone, is undoubtedly
insufficient to constitute a hostile working environment. Moreover, even the
rumors of Kohutka’s extramarital affair, standing alone, would likely not suffice to
constitute a hostile working environment.” (Mem & Order, at 25.); Faragher, 524
U.S. at 788, 118 S. Ct. at 2283 (“simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment”) (internal quotations omitted). As aptly
stated by the Supreme Court:
These standards for judging hostility are sufficiently demanding to
ensure that [Section 1983] does not become a “general civility code.”
. . . Properly applied, they will filter out complaints attacking “the
ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing.” B.
Lindemann & D. Kadue, Sexual Harassment in Employment Law
175 (1992) (footnotes omitted).
Faragher, 524 U.S. at 788, 118 S. Ct. at 2283–84.
Nevertheless, as mentioned above, there are a number of factors to consider
in a hostile work environment analysis, including but not limited to 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. Taken together, the Court finds that the
frequency and severity of the harassment alleged in this case materially altered the
Plaintiff’s work environment for the worse.
The Defendants also argue that some of the relevant incidents occurred
outside the work place at union or political events. As articulated in some Title VII
cases, “‘as a general proposition, employers are not responsible . . . for hostile
sexual acts resulting from nonwork-related, off-duty interactions between coemployees.’” Feliciano v. Alpha Sector, Inc., No. 00 Civ. 9309 (AGS), 2002 WL
1492139, *8 (S.D.N.Y. July 12, 2002) (quoting P. v. Delta Air Lines, Inc., 102
F.Supp.2d 132, 138 (E.D.N.Y. 2000), vacated on other grounds by Ferry v. Delta
Air Lines, Inc., 277 F.3d 128 (2d Cir. 2001)). However, “[t]he employment
relationship cannot be so finely and facilely parsed. It comprises multiple
dimensions of time and place that cannot be mechanically confined within the
precise clockwork and four walls of the office.” Parrish v. Sollecito, 249 F. Supp.
2d 342, 351 (S.D.N.Y. 2003)
Moreover, even if the Court were to examine only a portion of the evidence
– namely, the on-site incidents such as the confrontation between the Plaintiff and
Allback and his subsequent false accusations of unwanted sexual contacts – these
would likely be sufficient to establish a hostile work environment. “These instances
subjectively and objectively are of such a nature that one would feel severely
humiliated, and would amount to more than mere offensive utterances.” (Mem &
Order, at 27.); Howley, 217 F.3d at 154 (holding that a coworker’s “conduct could
reasonably be viewed as having intolerably altered [the plaintiff's] work
environment,” because although the coworker “made his obscene comments only
on one occasion, the evidence is that he did so at length, loudly, and in a large
group in which [the plaintiff] was the only female and many of the men were her
subordinates”). “The comments and conduct at issue were sexually explicit,
offensive, highly derogatory, and publicly made.” (Mem & Order, at 27.); Harris,
510 U.S. at 23, 114 S. Ct. at 371 (noting that while a “mere offensive utterance”
might not create a hostile environment, conduct which is “humiliating” is more
likely to do so).
Finally, Milone claims that he may not be held individually liable for the
creation of this alleged hostile work environment. The Plaintiff concedes that
Milone did not “harass” her in any way. However, the Court finds that a triable
issue of fact exists as to whether Milone, by encouraging the Plaintiff to become
involved in the Republican party, directly contributed to the formation of a hostile
work environment based on the Plaintiff’s political affiliation. The Court further
finds that a triable issue of fact exists as to whether Milone contributed to the
formation of a hostile work environment based on the Plaintiff’s gender by failing
to take the appropriate remedial steps in response to the underlying harassment and
by for example, telling the Plaintiff to “shrug off” her complaints. This is so even
though the Plaintiff acknowledges that (1) Milone never prevented the Plaintiff
from filing a formal complaint and (2) lacked the power to sanction, censure, or
terminate Shelter employees.
b. Actions Motivated by Gender and/or Political Affiliation
Again, it is not sufficient for the Plaintiff to merely allege that compared
with others similarly situated, she was selectively mistreated by being subjected to a
hostile work environment. Rather, to pursue a Section 1983 Equal Protection claim
based on a hostile work environment theory, the Plaintiff must also allege that the
environment was created because of the Plaintiff’s sex and/or political views. In
other words, even if the Plaintiff sufficiently alleges the existence of a hostile work
environment, she must also provide a basis from which to infer that the Defendants’
conduct was directed against her on the basis of her gender and/or political
association. See Lange, 213 F. Supp. 2d at 424 (“[P]laintiff provides no basis from
which to infer that the Board’s conduct was directed against her on the basis of
gender. Although the Board members may have been influenced by their personal
and political connections to Montanye, this is insufficient to establish a
constitutional violation. . . . [and] may not form the basis for a hostile work
environment claim under § 1983.”).
As to whether the hostile work environment was created because of the
Plaintiff’s refusal to become active in the Republican Party, the Court finds that
Kohutka has adequately established a basis for this inference. There is evidence in
the record that the Plaintiff was encouraged by Milone to be active within the local
Republican Party, and it was known among all employees that it was crucial to be
so involved in order to advance in their jobs. Moreover, there is evidence that, on
one occasion, Milone told Kohtuka that she should join her Town Republican Club
and get more involved in the Republican Party in order to be promoted. The
Plaintiff testified that, when she declined to do so, in retaliation, she was not
promoted. “Therefore, any hostile conduct asserted under the rubric of Equal
Protection could reasonably have been directed against her on the basis of this lack
of political affiliation.” (Mem & Order, at 28.)
With regard to whether the hostile conduct may have also been directed
against her on the basis of gender, the Court similarly finds that while not all of the
hostile work environment acts appear to be based upon gender, “the confrontation
between Kohutka and Allback in April 2008 and his subsequent false accusations of
unwanted sexual contact in about June 2008 appear to the Court to be genderbased.” (Id.).
“First, the Court finds that if Allback called the Plaintiff a “f***ing [c*unt]”
in the workplace in front of multiple supervisors and approximately seven
employees, these words unquestionably would have been motivated by the
Plaintiff’s gender.” (Id. at 29); Steiner v. Showboat Operating Co., 25 F.3d 1459,
1464 (9th Cir. 1994) (“his abuse of female employees, especially Steiner, centered
on the fact that they were females. It is one thing to call a woman ‘worthless,’ and
another to call her a ‘worthless broad.’”); Galloway v. Gen. Motors Serv. Parts
Ops., 78 F.3d 1164, 1168 (7th Cir. 1996) (“The terms ‘fucking broads’ and ‘fucking
cunts’ are more gendered than ‘bitch’”) (overruled in part on other grounds by Natl
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106
“Moreover, although the Defendant argue to the contrary, an accusation
that a female employee physically grabbed another employee’s genitals is
undoubtedly sexual in nature and motivated by gender.” (Mem & Order, at 29);
Alfano v. Costell, 940 F. Supp. 459, 473 (N.D.N.Y. 1996) (“defendants accused her
of having a sexual affair with a co-worker and ridiculed her about the affair, . . . All
of these incidents were of a sexual nature.”) (reversed in part on other grounds,
Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002)).
The Defendants assert that a majority of the incidents cited by Kohutka are
sex-neutral on their face. For a fact-finder to eventually conclude that this conduct
was based upon gender, the Plaintiff will need some circumstantial evidence or
other basis to infer that the sexually-neutral acts on their face were in fact
discriminatory. However, these instances can nevertheless be asserted now as part
of the “totality of the circumstances” that this Court may consider in assessing a
prima facie case of a hostile work environment. It is sufficient for the Plaintiff to
point to some evidence that the non-overtly sexual acts may in fact have been
motivated by her gender, in light of the surrounding circumstances. See Alfano v.
Costello, 294 F.3d 365, 375 (2d Cir. 2002) (“There is little question that incidents
that are facially sex-neutral may sometimes be used to establish a course of sexbased discrimination-for example, where the same individual is accused of multiple
acts of harassment, some overtly sexual and some not.”). “As the Supreme Court
[has] stated . . . , neither ‘sex-specific and derogatory terms’ nor any evidence that
‘sexual desire’ motivated the harassment is needed to prove an actionable hostile
work environment.” Gregory v. Daly, 243 F.3d 687, 695 (2d Cir. 2001); Howley,
217 F.3d at 145, 148, 154-55 (finding acts of insubordination, dissemination of
untrue rumors about plaintiff, and aspersions on her competence each contributed to
a hostile work environment, based on sex, where plaintiff was the only woman
among 100 firefighters and other harassing conduct referred to her performance of
sexual acts on men).
“Moreover, the Court declines to dissect the various instances of conduct at
issue for purposes of th[ese] motion[s].” (Mem & Order, at 30.) As aptly stated by
the Second Circuit:
Some of the incidents in this case lend themselves to a distinction,
which often is dim, between incidents having an overtly sexual
tone (such as demeaning advances and humiliations that depend
upon or are sharpened by one's sex), and personnel decisions that
lack earmarks of bias (earmarks such as unreasonable actions taken
by persons shown to have engaged in incidents having an overtly
sexual element, or a peculiar enforcement of personnel rules
correlated somehow with the claimed ground of discrimination).
Alfano, 294 F.3d at 377. As a general matter, “[i]t is . . . important in hostile work
environment cases to exclude from consideration personnel decisions that lack a
linkage or correlation to the claimed ground of discrimination. Otherwise, the
federal courts will become a court of personnel appeals.” Id. However, the Court
will not dismiss certain instances of the Defendants’ alleged conduct at this stage in
the proceedings because even if some conduct lacks a sexual component or any
reference to the victim’s sex, it could, in context, be reasonably interpreted as
having been taken on the basis of the Plaintiff’s gender. O’Rourke v. City of
Providence, 235 F.3d 713, 730 (1st Cir. 2001) (“Courts should avoid disaggregating
a hostile work environment claim, dividing conduct into instances of sexually
oriented conduct and instances of unequal treatment . . . .”).
It is true that, “[i]n cases arising from the break-up of a consensual sexual
relationship between coworkers, courts have repeatedly observed that there is a
distinction between personal animosity arising from a failed relationship, which is
not actionable sexual harassment, and animosity based on a person's gender, which
can be.” Bracey v. Ne. Utilities Serv. Co., CV126027883S, 2013 WL 6334262, at
*9 (Conn. Super. Ct. Nov. 1, 2013); Novak v. Waterfront Commission of New York
Harbor, 928 F. Supp. 2d 723, 730–31 (S.D.N.Y. 2013) (mistreatment by former
supervisor following breakup of consensual sexual relationship, and mistreatment
by other supervisors whose attitudes were affected by former supervisor's, “while
unfair and unfortunate, does not constitute Title VII sex discrimination under
existing law”); Conklin v. Suffolk, 859 F. Supp. 2d 415, 428 (E.D.N.Y. 2012)
(“Courts often find that harassment by a co-worker is not considered to be ‘based
on sex’ when it arises from a failed relationship” (citing cases)); Stepheny v.
Brooklyn Hebrew School for Special Children, 356 F. Supp. 2d 248, 263 (E.D.N.Y.
2005) (“Conduct motivated by personal animosity does not run afoul of Title VII's
prohibition against altering the terms and conditions of employment because of
sex”); West v. MCI Worldcom, Inc., 205 F. Supp. 2d 531, 545 (E.D. Va. 2002)
(“Courts have consistently drawn the distinction between ‘actions based on
discriminatory animus and those based on personal animosity resulting from failed
consensual relationships.’”)(quoting Pipkins v. City of Temple Terrace, Florida,
267 F.3d 1197, 1199 (11th Cir. 2001)); Campbell v. Masten, 955 F. Supp. 526, 530
(D. Md. 1997) (“[N]egative employment actions which follow on the heels of a
consensual relationship gone sour do not constitute quid pro quo sexual harassment
unless they are linked in some way to other or further ‘unwanted’ sexual
Here, the Plaintiff disputes that she ever engaged in a sexual relationship
with Allback. Thus, at the least, the Court finds that the Plaintiff’s alleged
relationship is a disputed issue of material fact. In any event, there is no per se bar
against hostile work environment claims based on gender that arise, whether
entirely or not, out of a failed consensual relationship. “To hold otherwise would
effectively immunize from Title VII liability any sexual harassment following a
failed relationship.” Sclafani v. PC Richard & Son, 668 F. Supp. 2d 423, 433
(E.D.N.Y. 2009); Forrest v. Brinker Intern. Payroll Co., LP, 511 F.3d 225, 230 (1st
Cir. 2007)(“Nowhere does prior case law suggest that certain types of
discriminatory behavior, held to constitute gender-based harassment in other cases,
may not constitute gender-based harassment when the parties had previously
engaged in a romantic relationship.”); accord Perks v. Town of Huntington, 251
F.Supp.2d 1143, 1157 (S.D.N.Y. 2003) (“Boiled down to its essence, [defendant's]
argument would mean that once a supervisor has engaged in a consensual
relationship with an employee, he subsequently has carte blanche to harass that
employee with impunity, even though the same behavior with respect to any other
employee would constitute a Title VII violation. This argument makes little sense –
prudentially or legally – and the Court rejects it.”).
Therefore, the Court concludes that, even if the Plaintiff previously engaged
in a sexual relationship with Allback, if the Plaintiff presents evidence that the
relationship was terminated and thereafter pervasive harassment of a sexual nature
continued over a substantial period of time despite complaints to supervisors, the
existence of the prior relationship would not preclude a hostile work environment
claim under Title VII, as a matter of law.
Furthermore, the Plaintiff’s hostile work environment claim is based not
only on Allback’s conduct following an alleged failed relationship, but also on
alleged harassment by Reeke, Bove, and Miranda, which while gender-neutral on
its face, could be interpreted, in conjunction with the otherwise plainly sex-based
incidents, as related to the Plaintiff’s gender.
In short, drawing all reasonable inferences in favor of the Plaintiff, the Court
concludes that material issues of fact exist as to the Plaintiff’s Section 1983 Equal
Protection Hostile Work Environment claim based upon her lack of political
involvement and her gender.
C. As to Monell Employer Liability
In addition, the Defendants argue that the Town may not be held liable for
Kohutka’s Section 1983 First Amendment retaliation and Equal Protection Hostile
Work Environment claims.
“[A] municipality cannot be held liable pursuant to § 1983 solely because of
the discriminatory actions of one of its employees.” Back v. Hastings On Hudson
Union Free Sch. Dist., 365 F.3d 107, 128 (2d Cir. 2004)(citing Monell v.
Department of Social Services, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978)(rejecting respondeat superior liability in the § 1983 context)). Therefore,
the Town can only be held liable if its “policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.” Monell, 436 U.S. at 694, 98 S. Ct. 2018. To succeed on
this claim, the Plaintiff must show that, pursuant to the well-settled law of Monell,
436 U.S. at 692–94, 98 S. Ct. 2018 and its progeny, “the challenged acts were
performed pursuant to a municipal policy or custom.” Patterson, 375 F.3d at 226.
See e.g., Rookard v. Health and Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)
(“Where an official has final authority over significant matters involving the
exercise of discretion, the choices he makes represent government policy.”).
To show a policy, custom, or practice:
the plaintiff need not identify an express rule or regulation. See,
e.g., Sorlucco v. New York City Police Department, 971 F.2d 864,
870 (2d Cir. 1992). It is sufficient to show, for example, that a
discriminatory practice of municipal officials was so “persistent or
widespread” as to constitute “a custom or usage with the force of
law,” id. at 870-71 (internal quotation marks omitted), or that a
discriminatory practice of subordinate employees was “so manifest
as to imply the constructive acquiescence of senior policy-making
officials,” id. at 871; see, e.g., Gierlinger v. New York State
Police, 15 F.3d at 34 (“Section 1983 liability can be imposed upon
individual employers, or responsible supervisors, for failing
properly to investigate and address allegations of sexual
harassment when through this failure, the conduct becomes an
accepted custom or practice of the employer.”). A policy, custom,
or practice may also be inferred where “the municipality so failed
to train its employees as to display a deliberate indifference to the
constitutional rights of those within its jurisdiction.” Kern v. City
of Rochester, 93 F.3d 38, 44 (2d Cir. 1996), cert. denied, 520 U.S.
1155, 117 S. Ct. 1335, 137 L. Ed. 2d 494 (1997) (internal
quotation marks omitted).
Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004).
With regard to the First Amendment retaliation claim, the Defendants argue
that the Plaintiff’s allegations that Milone encouraged her to be involved and active
within the Republican party, and that it was known among all employees that it was
crucial to be involved in order to advance, are insufficient rumor or innuendo that
does not provide any factual basis to support a claim that the Town actually has a
policy or practice of discrimination. However, the Court finds that there is evidence
in the record establishing a discriminatory practice of officials that was so persistent
or widespread as to constitute a custom or usage. The Plaintiff testified that
representatives of the Town encouraged her to get involved and be active within the
local Republican Party, and that it was known among all employees that
advancement depended in part on politics.
With regard to the Plaintiff’s Equal Protection Hostile Work Environment
claim, an employer will be held liable for a hostile work environment in the
workplace when the employer knows of the hostile work environment but fails to
take appropriate remedial steps. See Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir.
2009) (“Despite offering a reasonable avenue of complaint to plaintiff, employer
defendants can still be held liable if plaintiff can show that they ‘knew, or in the
exercise of reasonable care should have known, about the harassment yet failed to
take appropriate remedial action.’”)(quoting Howley v. Town of Stratford, 217 F.3d
141, 154 (2d Cir. 2000))). The Court analyzes whether an employer’s remedial
actions were sufficient based on the totality of the circumstances. Id. (citing
Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998)).
In the present case, the record indicates that the Plaintiff was called a
sexually explicit and derogatory term in the workplace in front of multiple
supervisors as well as several employees, but Allback was never suspended or
reprimanded for this behavior. There is also evidence that, although the Plaintiff
was suspended without pay for three days after Allback’s accusations regarding her
unwanted sexual contact, these charges were eventually dismissed in their entirety
and her suspension was reversed. Nevertheless, Allback was not disciplined in any
way for making these false allegations. There is also evidence that Milone simply
dismissed the Plaintiff’s complaints, telling her to “shrug it off.” The Court finds
that this evidence may demonstrate that Town knew, or in the exercise of
reasonable care should have known, about these instances of harassment, yet failed
to take appropriate remedial action.
To be sure, there is evidence that the Plaintiff did not specifically report that
she was being treated in a negative way by co-employees because of her gender or
political involvement and the Town did take some steps to rectify the worsening
situation, including conducting individual meetings with the relevant players after
the April 16, 2008 incident.
However, viewed cumulatively, it becomes clear to the Court that disputed
issues of material fact exist as to whether (1) the discriminatory practice of officials
was so persistent or widespread as to constitute a custom or usage and (2) the Town
satisfied its obligations under Section 1983 in responding to the alleged hostile
D. State Law Claims
Finally, the Defendants raise arguments as to why the Plaintiff’s state law
claims should be dismissed.
To the extent the Plaintiff raises a claim under the Nassau County Human
Rights Law, that law does not provide a right of action and, therefore, that claim is
dismissed. Chesney v. Valley Stream Union Free Sch. Dist. No. 24, 05 CIV 5106
(DRH)(ETB), 2007 WL 1288137, at *4 (E.D.N.Y. Apr. 30, 2007)
The Plaintiff also asserts a state law hostile work environment claim based
on her gender and predicated upon the NYHRL which provides, in pertinent part,
that “it shall be unlawful discriminatory practice (a) for an employer . . . because of
an individual’s age, race, creed, color, national origin, sexual orientation, military
status, [or] sex, . . . to discharge from employment such individual in compensation
or in terms, conditions or privileges of employment.” N.Y. Exec. Law. § 296(a).
“A supervisor is an ‘employer’ for purposes of establishing liability under the
[NYHRL] if that supervisor actually participates in the conduct giving rise to [the]
discrimination.” Feingold v. New York, 366 F.3d 138, 157 (2d Cir. 2004) (internal
The standards for evaluating claims arising under Section 1983 and the
NYSHRL are identical for hostile work environment claims. See Weinstock v.
Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000); Smith v. Town of Hempstead
Dep't of Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451 (E.D.N.Y. 2011)
(Spatt, J.) (“The standard for showing a hostile work environment under Title VII,
Section 1981, Section 1983, and the New York State Human Rights Law is
essentially the same.”); Davis v. Oyster Bay–East, No. 03 Civ. 1372, 2006 WL
657038, at *8, n. 12 (E.D.N.Y. Mar. 9, 2006), aff'd, 220 Fed. Appx. 59 (2d Cir.
2007) (“discrimination claims under Title VII, 42 U.S.C. §§ 1981 and 1983, and
NYHRL § 296 are analyzed together, as the same analytic framework applies to
Having concluded that a triable issue of fact exists as to the Plaintiff’s 1983
Equal Protection Hostile Work Environment claims as against Milone and the
Town, the Court similarly finds that a triable issue of fact exists as to the Plaintiff’s
NYSHRL claims against Milone and the Town.
Further, unlike Section 1983, the Second Circuit has also held that this
statute “allow[s] a co-worker who ‘actually participates in the conduct giving rise to
a discrimination claim’ to be held liable under the [NYSHRL] even though that coworker lacked the authority to either hire or fire the plaintiff.” Feingold v. New
York, 366 F.3d 138, 157-58)(2d Cir. 2004) (quoting Tomka v. Seiler Corp., 66 F.3d
1295, 1317 (2d Cir. 1995); Petrosky v. New York State Dep't of Motor Vehicles, 72
F. Supp. 2d 39, 65 (N.D.N.Y. 1999) (noting that the “vast majority of federal courts
to have considered the question have followed Tomka ”); Murphy v. ERA United,
251 A.D.2d 469, 674 N.Y.S.2d 415 (2d Dep’t 1998) (clarifying, after an earlier
decision cast doubt on plaintiffs' ability to sue co-workers under the aid-and-abet
provision, that co-employees may be held liable for aiding and abetting the
discrimination of an employer so long as the employer itself is susceptible to suit);
D'Amico v. Commodities Exch., Inc., 235 A.D.2d 313, 652 N.Y.S.2d 294 (1st
Dep’t 1997) (calling the availability of this cause of action “settled precedent in [the
The Defendants maintain that the Allback and Reeke were not individually
involved in the underlying conduct. In the Court’s view, these claims are without
merit. As to Allback, the record indicates that he (1) called the Plaintiff a “f***ing
c*nt” in front of several co-workers and supervisors; (2) falsely accused the
Plaintiff of grabbing his testicles; (3) accused the Plaintiff of scratching his car; and
(4) accused the Plaintiff of circulating the anonymous letters. The fact that the
Plaintiff admittedly sought to provoke Allback on April 18th, 2008 does not absolve
Allback from liability for a hostile work environment claim under the NYHSRL.
Indeed, the Court notes that Allback apparently lodged his complaint of sexual
assault against the Plaintiff ten months after the subject incident. In light of this
evidence, the Court finds that a triable issue of fact exists as to whether Allback was
a participant in the alleged hostile work environment surrounding the Plaintiff.
Accordingly, the Court denies the Defendants’ motion for summary judgment with
respect to the NYSHRL claim against Allback.
As to Reeke, the record indicates that there is evidence that she regularly
spat at the Plaintiff when she walked by, and, as a means of intimidation,
surrounded the Plaintiff’s car with her friends when the Plaintiff parked her car in
the morning. There is also evidence that Reeke falsely accused the Plaintiff of
sleeping with Errico and of grabbing Errico’s testicles, and stole the Plaintiff’s car
keys. Taken together, the Court finds that the Plaintiff has produced sufficient
evidentiary proof that Reeke was a participant in creating a hostile work place
environment based on the Plaintiff’s gender. Accordingly, the Court denies the
Defendants’ motion for summary judgment with respect to the NYSHRL claim
However, tellingly, the Plaintiff’s brief in opposition makes no argument
with regard to whether Bove or Braccio should be held individually liable under the
NYSHRL. Thus, the Court considers this argument abandoned and dismisses the
complaint to the extent the Plaintiff asserts NYSHRL claims against Bove and
Braccio. Uebler v. Boss Media AB, 432 F. Supp. 2d 301, 304-05 (E.D.N.Y. 2006).
For the foregoing reasons, it is hereby
ORDERED that the Defendants’ motion for summary judgment pursuant to
Fed. R. Civ. P. 56 is granted to the extent that the Court (1) dismisses the
Plaintiff’s Section 1983 First Amendment Retaliation claims against Milone,
Allback, Reeke, Bove, and Braccio in their individual capacities; (2)
dismisses the Section 1983 Equal Protection Hostile Work Environment
claims against Allback, Reeke, Bove, and Braccio in their individual
capacities; (3) dismisses the Nassau County Human Rights Law claims
against the Defendants with prejudice; (4) and dismisses the New York State
Human Rights Law claims against Bove and Braccio; and it is further
ORDERED, that the Defendants’ motion for summary judgment is denied in
that the Court finds that material issues of fact exist as to the Plaintiff’s (1)
Section 1983 First Amendment Retaliation claims against the Town; (2)
Section 1983 Equal Protection Hostile Work Environment claims against the
Town and Milone; and (3) New York State Human Rights Law claims as to
the Town, Milone, Allback, and Reeke. Accordingly, the Defendants’
motions for summary judgment dismissing these causes of action are denied.
Dated: Central Islip, New York
January 29, 2014
Arthur D. Spatt________
ARTHUR D. SPATT
United States District Judge
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