Olsen v. Suffolk County Police Department et al
Filing
21
MEMORANDUM & ORDER granting in part and denying in part 14 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendants' motion to dismiss (Docket Entry 14) is GRANTED IN PART and DENIED IN PART. Defendants' m otion is DENIED as to Plaintiff's Section 1983 claim against the County with respect to the alleged policy of failing to address sexual harassment and GRANTED with respect to deliberate indifference and the alleged policy of commencing sexual ha rassment investigations after the completion of the parallel criminal investigation. Defendants' motion is GRANTED with respect to Plaintiff's Section 1983 claim against Bellone and Commissioner Webber in their official and individual capac ities. Defendants' motion is DENIED with respect to Plaintiff's hostile work environment and discrimination claims against the County under Title VII and the NYSHRL and GRANTED with respect to Plaintiff's retaliation claims against th e County under Title VII and the NYSHRL. Defendants' motion is GRANTED with respect to Plaintiff's NYSHRL claims against Bellone and Commissioner Webber. Plaintiff is GRANTED leave to amend the Amended Complaint to amend all dismissed claims within thirty (30) days of the date of this Memorandum and Order. So Ordered by Judge Joanna Seybert on 9/27/2016. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
CINDY OLSEN,
Plaintiff,
-against-
MEMORANDUM & ORDER
15-CV-4064(JS)(AYS)
SUFFOLK COUNTY, STEVEN BELLONE,
and EDWARD WEBBER,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Matthew Ian Marks, Esq.
Ricotta & Marks, P.C.
31-10 37th Avenue, Suite 401
Long Island City, NY 11101
For Defendants:
Megan E. O’Donnell, Esq.
Suffolk County Attorney’s Office
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788
SEYBERT, District Judge:
Plaintiff
Cindy
Olsen
(“Plaintiff”)
commenced
this
action against defendants Suffolk County (the “County”), Steven
Bellone (“Bellone”), and Edward Webber (“Commissioner Webber” and,
collectively, “Defendants”) asserting claims pursuant to 42 U.S.C.
§ 1983 (“Section 1983”), Title VII of the Civil Rights Act of 1964
(“Title VII”), and state law.
Presently pending before the Court
is Defendants’ motion to dismiss the Complaint.
Docket Entry 14.)
(Defs.’ Mot.,
For the following reasons, Defendants’ motion
is GRANTED IN PART and DENIED IN PART.
BACKGROUND
In or about 1991, Plaintiff was hired as a police officer
at the Suffolk County Police Department (the “Police Department”)
and assigned to the Sixth Precinct.
¶ 10.)
(Am. Compl., Docket Entry 10,
Plaintiff was promoted to Sergeant in or about November
2002, and promoted to Community Oriented Police Enforcement (COPE)
Sergeant in or about 2006.
(Am. Compl. ¶ 11.)
only female Sergeant in the Sixth Precinct.
Plaintiff was the
(Am. Compl. ¶ 12.)
Bellone is the County Executive and Commissioner Webber is the
Commissioner of the Police Department.
I.
(Am. Compl. ¶¶ 7-8.)
Plaintiff’s Relocation
In or about April 2014, Sixth Precinct Inspector Thomas
Palmieri
(“Inspector
Palmieri”)
directed
that
Plaintiff
be
relocated to a “different, less desirable and prestigious office.”
(Am. Compl. ¶ 14.)
Plaintiff previously shared an office equipped
with gun lockers and computers with her partner, Steve Demeo
(“Demeo”).
(Am. Compl. ¶ 14.)
Plaintiff was moved to her
subordinates’ office and a male civilian research analyst replaced
Plaintiff in her old office. (Am. Compl. ¶ 14.) Demeo was provided
with his own office and Plaintiff was instructed to gather and
organize Demeo’s files and clothing and move these items, along
with lockers and desks, to Demeo’s new office.
2
(Am. Compl. ¶ 14.)
At or around this time, Captain Jan Rios (“Captain
Rios”)1 told Plaintiff that Palmieri said he “wanted to get rid of
her.”
(Am. Compl. ¶ 15.)
Additionally, when Plaintiff asked why
she was being moved Captain Rios indicated that “there had been an
intention
to
remove
[Plaintiff]
from
that
unit,
without
explanation” and warned that “[Inspector] Palmieri felt that they
could not have a woman off the wall, carrying on around the
precinct.”
(Am. Compl. ¶ 16.)
Plaintiff alleges that Captain
Rios is responsible for employee hiring, firing, promotions, and
discipline, and is also responsible for training and supervising
employees regarding harassment, discrimination, and retaliation.
(Am. Compl. ¶ 17.)
II.
Everett Wehr
On or about May 26, 2014, Plaintiff was eating dinner
with coworkers outside the precinct and Everett Wehr (“Officer
Wehr”), a police officer in the Sixth Precinct’s crime control
section and union delegate, began massaging her neck and back and
pressed his genitals against Plaintiff’s back.
(Am. Compl. ¶ 18.)
Plaintiff told him to stop and stated “‘is this supposed to be a
massage? I can feel your genitals.’” (Am. Compl. ¶ 18.) Plaintiff
had “some contact” with Officer Wehr based on her interactions
with Gary Thompson (“Officer Thompson”), a police officer and union
1
Captain Rios is male.
(Am. Compl. ¶ 15.)
3
delegate for Plaintiff’s subordinates.
(Am. Compl. ¶ 19.)
On or
about June 9, 2014, Officer Wehr was transferred to the Police
Department headquarters building.
(Am. Compl. ¶ 20.)
On or about June 23, 2014, at 6:00 p.m., Officer Wehr
appeared in Plaintiff’s office doorway and indicated that he was
cleaning out his desk.
(Am. Compl. ¶ 22.)
When Plaintiff looked
up from her desk, “Wehr exposed himself and put his erect penis
over [Plaintiff’s] shoulder at mouth level [and] was holding his
penis and pointing it at her.”
(Am. Compl. ¶ 22.)
Plaintiff was
frightened and covered her eyes with her hands. (Am. Compl. ¶ 22.)
When Plaintiff uncovered her eyes, she saw that “Wehr’s penis was
still exposed, and that he had repositioned himself so that he was
standing behind her.”
(Am. Compl. ¶ 22.)
Officer Wehr proceeded
to grab Plaintiff’s right wrist and pull it; when Plaintiff
struggled, Officer Wehr released her wrist and continued to stand
there.
(Am. Compl. ¶ 22.)
Officer Wehr then violently grabbed
her right wrist and forcibly held her hand on his penis.
Compl. ¶ 22.)
Officer Wehr let Plaintiff’s hand go, and lingered
behind her until he went to exit, stating “‘I’m coming back.
be back.
(Am.
I’ll visit.’”
I’ll
(Am. Compl. ¶ 22.)
Plaintiff felt threatened and was traumatized by the
incident.
Officer
(Am. Compl. ¶ 23.)
Wehr’s
conduct
“as
Plaintiff was fearful of reporting
she
had
observed
throughout
her
employment numerous victims of sexual harassment in the precinct
4
who were not protected, were discouraged from coming forward, and
whose complaints were ignored or concealed.”
(Am. Compl. ¶ 23.)
On or about October 6, 2014, Plaintiff was stationed in
front of another officer’s home while he attended his son’s
funeral.
(Am. Compl. ¶ 31.)
Prior to her assignment, Plaintiff
told Captain Rios she was afraid she would see her attacker.
Compl. ¶ 31.)
(Am.
At about 2:50 p.m. that day, Officer Wehr pulled up
the driveway of the officer’s home and stepped out of an unmarked
car.
(Am. Compl. ¶ 31.)
Officer Wehr whistled at Plaintiff, and
“started strutting on the front path of the house.”
¶ 31.)
(Am. Compl.
Plaintiff felt threatened; she entered her car, locked it,
and called the Sixth Precinct to request a replacement at her post.
(Am. Compl. ¶ 31.)
After bringing food into the house, Officer
Wehr got into his car, pulled up next to Plaintiff’s car and
“taunt[ed]” her by beeping the horn and moving the car backwards
and forwards.
(Am. Compl ¶ 31.)
Officer Wehr sped away, then
returned and pulled up next to Plaintiff’s car; he “stared at her,
taunting her and intimidating her” and then sped away. (Am. Compl.
¶ 31.)
III.
Reports to Police Department Personnel
In or about July 2014, Plaintiff told Officer Thompson
“there
was
an
incident
in
which
[Wehr]
had
done
something
inappropriate to her . . . [that] was serious and of a sexual
nature.”
(Am. Compl. ¶ 24.)
Officer Thompson replied, “Oh no,
5
[w]hat did he do now . . . [n]ever mind.
have to play golf with him this week.”
I don’t want to know, I
(Am. Compl. ¶ 24.)
Officer
Thompson said he was “concerned that Wehr was now stationed at
Headquarters with access to several female civilians.” (Am. Compl.
¶ 24.)
On or about September 18, 2014, Plaintiff told Sergeant
O’Shea that “someone who used to work in the 6th precinct came
into the COPE office, exposed himself to her with an erect penis
and forcibly made her touch his penis.”
(Am. Compl. ¶ 25.)
Plaintiff did not name Officer Wehr and asked Sergeant O’Shea not
report the incident because she would report it when she was ready.
(Am. Compl. ¶ 25.)
Plaintiff later learned that O’Shea disclosed
the incident to his supervisor, Lieutenant Riggio.
On
or
about
September
23,
2014,
(Compl. ¶ 25.)
Plaintiff
told
Lieutenant Riggio that a person who worked in Crime Control and
used to work in the Sixth Precinct exposed himself to her.
Compl.
¶
26.)
responsible
Plaintiff
for
the
alleges
“discipline
of
that
Lieutenant
employees
and
(Am.
Riggio
all
is
other
employment related issues” as well as training and supervising
employees regarding harassment, discrimination, and retaliation.
(Am. Compl. ¶ 27.)
In or about September 2014, Plaintiff’s coworkers told
Captain Rios that Plaintiff was “not acting like herself.”
Compl. ¶ 28.)
(Am.
When Captain Rios asked Plaintiff what was going
6
on, Plaintiff told him that someone who used to work in the Sixth
Precinct and was moved to headquarters “exposed himself to her
with an erect penis and forcibly made her touch his penis.”
Compl. ¶ 28.)
(Am.
Captain Rios “responded hostilely, ‘why didn’t you
scream?’ ‘you’re a supervisor!’ . . . ‘why did you wait until now
to report it[.]’”
(Am. Compl. ¶ 28.)
Plaintiff did not name
Officer Wehr specifically and asked Captain Rios not to report the
incident because she wanted to report it when she was ready.
(Am.
Compl. ¶ 28.)
Around the same time, Captain Rios encouraged Plaintiff
to report the incident.
(Am. Compl. ¶ 28.)
Plaintiff expressed
that she was afraid to report the incident and feared encountering
her attacker again.
(Am. Compl. ¶ 28.)
Captain Rios advised that
“there would be backlash against [Plaintiff] if and when she names
her attacker.”
(Am. Compl. ¶ 28.)
In or about late September 2014, Lieutenant Riggio told
Sergeant O’Shea that they needed to confront Plaintiff and “stage
an intervention” in order to encourage her to report her sexual
assault complaint.
(Am. Compl. ¶ 29.)
Plaintiff alleges that
Lieutenant Riggio and Sergeant O’Shea were already obligated to
report
the
incident
pursuant
to
the
Suffolk
County
Police
Department Rules and Procedures (“R&P”), which provide that all
members of the Police Department have a mandatory duty to bring
any harassing or coercive behavior to the attention of their
7
supervisor “independent of the personal wishes of the offended.”
(Am. Compl. ¶ 30.)
Additionally, the R&P provides that:
[E]ach supervisor of the [Police Department]
shall be responsible for assisting in the
prevention of sexual harassment . . . each
supervisor of the [Police Department] shall be
responsible for preventing acts of sexual
harassment . . . every supervisor has the
responsibility to assist any employee of this
Department who comes to that supervisor with
a complaint of sexual harassment.
(Am. Compl. ¶ 30 (quoting R&P Chapter 5, Section 7).)
Plaintiff
alleges that Sergeant O’Shea, Lieutenant Riggio, and Captain Rios
failed to follow the R&P.
(Am. Compl. ¶ 30.)
At a weekly staff meeting on or about October 8, 2014,
the discussion turned to sexual assault victims being brought to
the police station rather than the hospital “because advocates are
known to put ideas in victims’ heads and then victims lie.”
Compl. ¶ 34.)
the bathroom.
(Am.
Plaintiff was upset by these statements and went to
(Am. Compl. ¶ 34.)
Captain Rios and Deputy
Inspector Gerard McCarthy (“Inspector McCarthy”) went to console
Plaintiff and stripped her of her gun.
(Am. Compl. ¶ 34.)
Captain
Rios told Inspector McCarthy what happened and indicated that
Officer Wehr committed the assault--thereby admitting that he knew
the identity of Plaintiff’s attacker--and Plaintiff confirmed that
Officer Wehr sexually assaulted her. (Am. Compl. ¶ 34.) Inspector
McCarthy said, in sum and substance, “‘this guy is 45 years old,
this is not the first time he has done this.’”
8
(Am. Compl. ¶ 34.)
Inspector McCarthy reported the incident to headquarters.
(Am.
Compl. ¶ 34.)
Thereafter,
Plaintiff
met
with
Captain
Rios,
Vinny
DiResta, her union delegate, and Tim Morris, the head of the union.
(Am. Compl. ¶ 35.)
Plaintiff alleges that the purpose of this
meeting was for “union personnel present to show that they were
representing the union.”
discussed,
procedures
(Am. Compl. ¶ 35.)
were
not
explained
Plaintiff was not provided with forms.
The incident was not
to
Plaintiff,
and
(Am. Compl. ¶ 35.)
The
union representatives did not try to contact Plaintiff after the
meeting.
(Am. Compl. ¶ 35.)
In or about October 2014, Sergeant O’Shea told Plaintiff
that the “overarching opinions” of the precinct’s police officers
were that “‘there had to be more to the story,’ that they could
not fathom that Wehr would sexually assault her.”
40.)
(Am. Compl. ¶
In or around December 2014, Sergeant O’Shea told Plaintiff
that many officers did not understand why she delayed in reporting
Officer Wehr’s conduct, (Am. Compl. ¶ 41), and Captain Rios told
Plaintiff that other supervisors, including Inspector Palmieri,
did not understand why she waited so long to report the incident,
(Am. Compl. ¶ 42).
On or about December 16, 2014, Plaintiff sent an internal
correspondence
form
to
Inspector
Palmieri
stating
that
she
disclosed that she was a “victim of a sexual offense and sexual
9
harassment” to her superiors and union delegates on October 8,
2014, and she met with detectives from the Special Victims Unit,
who are completing an investigation. (Am. Compl. ¶ 44.) Plaintiff
also advised that she had not received any complaint forms and was
not directed to submit any paperwork.
(Am. Compl. ¶ 44.)
On or about December 22, 2014, Plaintiff spoke with
Jennifer McNamara, the County’s Director of Labor Relations, about
the Police Department’s lack of investigation into her matter.
(Am. Compl. ¶ 45.)
gave
Plaintiff
McNamara was not aware of an investigation and
the
“Complainant’s
Discrimination” form.
Report
of
Harassment
or
(Am. Compl. ¶ 45.)
In or about January 2015, Plaintiff learned that Officer
Wehr
was
spreading
relationship.
rumors
that
(Am. Compl. ¶ 46.)
Wehr was promoted to detective.
IV.
they
had
been
in
a
sexual
In or about March 2015, Officer
(Am. Compl. ¶ 50.)
Sergeant Lynch
Following Plaintiff’s meeting with Captain Rios and
union personnel in or about October 2014, Plaintiff met with
Detective Giordano and Detective Kirk with the Special Victims
Unit
as
well
as
Sergeant
Kelly
Lynch
(“Sergeant
Lynch”),
Departmental Designee on Sexual Harassment and union delegate.
(Am.
Compl.
¶
36.)
In
attempting
to
explain
the
incident,
Plaintiff became anxious and could not continue the meeting.
Compl. ¶ 36.)
(Am.
The Detectives and Sergeant Lynch brought Plaintiff
10
to
a
Police
Hospital.
Department
psychologist
(Am. Compl. ¶ 36.)
and
then
to
Stonybrook
Plaintiff was diagnosed with post-
traumatic stress disorder (“PTSD”).
(Am. Compl. ¶ 36.)
Plaintiff alleges that Sergeant Lynch is responsible for
“ensuring
that
employees
are
not
subject
to
harassment
or
discriminatory treatment,” as well as training and supervising
employees regarding harassment, discrimination, and retaliation.
(Am.
Compl.
investigating
¶
37.)
Sergeant
Lynch
sexual
harassment
is
also
complaints
findings to Bellone and Commissioner Webber.
responsible
and
reporting
for
her
(Am. Compl. ¶ 37.)
Pursuant to the R&P, the Departmental Designee must provide an
employee with a Sexual Harassment Complaint Form and an Employee
Rights Form.
(Am. Compl. ¶ 38.)
The Departmental Designee is
also required to take the necessary steps to protect the employee
from additional sexual harassment and make sure that “appropriate
investigative and disciplinary measures may be initiated without
delay.”
(Am. Compl. ¶ 38.)
However, Sergeant Lynch did not
provide Plaintiff with any complaint forms; did not interview
Plaintiff; and did not “explain [Plaintiff’s] rights to her” or
inform Plaintiff that she had initiated an internal investigation.
(Am. Compl. ¶ 39.)
Sergeant Lynch did not attend any subsequent
meetings with Plaintiff.
(Am. Compl. ¶ 39.)
In or about March 2015, Sergeant Lynch asked Plaintiff
to complete a sexual harassment complaint form. (Am. Compl. ¶ 51.)
11
Sergeant Lynch indicated that her investigation was “on hold” until
the completion of the criminal investigation, and stated “‘now I
can start my investigation.’”
(Am. Compl. ¶ 51.)
Plaintiff
alleges that the Police Department has an “unwritten policy or
custom” that a sexual harassment and/or sexual assault claim will
only be investigated after the completion of the accompanying
criminal investigation.
April
2015,
Plaintiff
(Am. Compl. ¶ 51.)
submitted
an
In or about early
additional
Sergeant Lynch but has not received a response.
complaint
to
(Am. Compl. ¶
52.)
In or about November 2015, a Deputy Inspector of the
Police Department told Plaintiff that the internal investigation
into
her
complaint
investigation.
had
been
“on
hold”
(Am. Compl. ¶ 53.)
pending
criminal
Plaintiff believes that an
internal investigation has not been commenced.
V.
the
(Am. Compl. ¶ 49.)
Plaintiff’s Leave of Absence
Plaintiff has been on sick leave since October 9, 2014,
due to her PTSD.
(Am. Compl. ¶ 47.)
Plaintiff has utilized her
sick leave, vacation days, and personal leave days.
¶ 47.)
(Am. Compl.
Plaintiff continues to receive a paycheck but by using her
sick, vacation, and personal days, Plaintiff will be unable to
receive the lump sum payment she would otherwise stand to receive
when she retires.
(Am. Compl. ¶ 47.)
Plaintiff alleges that the
R&P provides that when an employee is diagnosed with PTSD, a
12
supervisor must investigate the incident and complete an “Injured
Employee Report.”
(Am. Compl. ¶ 48.)
Captain Rios has failed to
complete an Injured Employee Report, and as a result, Plaintiff’s
Workmen’s Compensation process has not begun.
(Am. Compl. ¶ 48.)
Plaintiff alleges that she is fearful to return to work
since no disciplinary actions have been taken against Officer Wehr.
(Am. Compl. ¶ 49.)
VI.
The Complaint
On
July
10,
2015,
Plaintiff
commenced
against the Police Department and the County.
this
action
(See Compl.)
On
December 18, 2015, Plaintiff was granted leave to file an Amended
Complaint.
2015.
Plaintiff filed her Amended Complaint on December 21,
(See Am. Compl.)
The Amended Complaint asserts six claims against the
County, as well as claims against Bellone and Commissioner Webber
in their individual and official capacities.
Compl.)
(See generally Am.
First, Plaintiff alleges that the County violated Section
1983 because it was deliberately indifferent to violations of
Plaintiff’s constitutional rights, maintained a custom or practice
of discrimination or retaliation, and subjected Plaintiff to a
hostile work environment based on gender.
(Am. Compl. ¶ 56.)
Plaintiff alleges that Bellone and Commissioner Webber “unlawfully
participated in and/or permitted” these acts of discrimination and
retaliation.
(Am. Compl. ¶ 57.)
13
Second, Plaintiff alleges that the County violated Title
VII
because
it
maintained
a
hostile
work
discriminated against her based on gender.
environment
and
(Am. Compl. ¶ 59.)
Third, Plaintiff alleges that the County violated Title VII by
failing to reasonably investigate her sexual harassment complaint
and/or provide an appropriate work environment in retaliation for
Plaintiff’s opposition to discriminatory practices.
(Am. Compl.
¶ 61.)
Fourth, Plaintiff alleges that Defendants discriminated
against Plaintiff in violation of New York State Human Rights Law
(“NYSHRL”) Section 296(1)(a).
(Am. Compl. ¶ 62 (quoting N.Y.
Executive Law § 296(1)(a)).)2
Fifth, Plaintiff asserts that
Defendants violated NYSHRL Section 296(7) by discriminating or
retaliating against her based on her opposition to practices barred
by the NYSHRL.
§ 296(7)).)
(Am. Compl. ¶ 65 (citing N.Y. Executive Law
Sixth,
Plaintiff
asserts
that
Bellone
and
Commissioner Webber violated NYSHRL Section 296(6) by aiding and
abetting acts of discrimination and retaliation.
(Am. Compl. ¶
68.)
While the Amended Complaint does not cite NYSHRL Section
296(1)(a) specifically, the quoted language in paragraph 62(a)
is derived from that statutory provision.
2
14
DISCUSSION
To withstand a motion to dismiss, a complaint must
contain factual allegations that “‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007)).
This plausibility standard is
not a “probability requirement” and requires “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. (internal
quotation
that
marks
and
citation
omitted).
To
regard,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Id.
The Court’s plausibility determination is a “context-specific task
that
requires
the
reviewing
experience and common sense.”
court
to
draw
on
its
judicial
Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (internal quotation marks and citation omitted).
Generally, the Court’s consideration of a Rule 12(b)(6)
motion to dismiss is “limited to consideration of the Complaint
itself.”
135
Dechberry v. N.Y. City Fire Dep’t, 124 F. Supp. 3d 131,
(E.D.N.Y.
2015)
(internal
quotation
marks
and
citation
omitted). However, “[a] complaint is deemed to include any written
instrument attached to it as an exhibit, materials incorporated in
it by reference, and documents that, although not incorporated by
reference, are integral to the complaint.”
15
Sira v. Morton, 380
F.3d 57, 67 (2d Cir. 2004) (internal quotation marks and citations
omitted.)
See also FED. R. CIV. P. Rule 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.”)
If the Court considers matters
outside of the complaint in connection with a Rule 12(b)(6) motion,
“the motion must be treated as one for summary judgment under Rule
56 . . . [and] [a]ll parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.”
FED.
R. CIV. P. Rule 12(d).
Defendants’ motion to dismiss includes the following
exhibits: (1) provisions of the R&P cited by Plaintiff in the
Amended Complaint (Defs.’ Mot., Exs. A-C, Docket Entries 14-3 14-5), (2) the Summons and Complaint in a state court lawsuit filed
by Plaintiff against Wehr (Defs.’ Mot., Ex. D, Docket Entry 146), (3) a Grand Jury Report regarding Plaintiff’s allegations
(Defs.’
Mot.,
Ex.
E,
Docket
Entry
14-7),
and
(4)
internal
correspondence from the Police Department to Plaintiff regarding
a workers’ compensation claim, (Defs.’ Mot., Ex. F, Docket Entry
14-8).
Plaintiff does not object to the Court’s consideration of
these documents.
(See generally Pl.’s Br., Docket Entry 17.)
The Court finds that the provisions of the R&P annexed
to Defendants’ motion at Exhibits A through C are incorporated by
reference, as the Amended Complaint expressly cites these R&P
provisions.
(Am. Compl. ¶¶ 30, 38, 48.)
16
Accordingly, the Court
will consider Exhibits A through C in determining Defendants’
motion.
However, the Court finds that the Summons and Complaint
in Plaintiff’s state court lawsuit against Wehr, the Grand Jury
Report,
and
the
compensation
are
internal
not
correspondence
incorporated
by
regarding
reference
or
worker’s
otherwise
“integral” to the Amended Complaint. The Court declines to convert
Defendants’ motion into a motion for summary judgment and will not
consider Defendants’ Exhibits D through F.
I.
Section 1983
Defendants argue that Plaintiff’s Section 1983 claim
should
be
dismissed
based
on
establishing municipal liability.3
9, at 3-10.)
her
failure
to
allege
facts
(Defs.’ Br., Docket Entry 14-
The Court disagrees.
A municipality will not be held liable pursuant to
Section 1983 based on a theory of respondeat superior for their
While Defendants generally assert that “Plaintiff has failed to
allege facts sufficient to establish a constitutional violation
committed by the County,” (Defs.’ Br. at 11-12), their brief
does not address Plaintiff’s underlying constitutional
deprivation in detail. “The Second Circuit has held that claims
of sexual harassment, brought under the Equal Protection Clause,
are actionable under § 1983.” Dawson v. Cty. of Westchester,
351 F. Supp. 2d 176, 193 (S.D.N.Y. 2004) (citation omitted).
For the reasons set forth below in the Court’s discussion of
Plaintiff’s Title VII claims, Plaintiff has stated an underlying
constitutional deprivation based on a hostile work environment.
See Kohutka v. Town of Hempstead, 994 F. Supp. 2d 305, 322-23
(E.D.N.Y. 2014) (“[a] plaintiff may state a claim under § 1983
for improper sexual conduct that creates a hostile work
environment”) (internal quotation marks and citation omitted).
3
17
employees’ torts.
Brewster v. Nassau Cty., 349 F. Supp. 2d 540,
549 (E.D.N.Y. 2004) (citing Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 692, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978).
However, a municipality may be liable “for actions taken pursuant
to official municipal policy that cause constitutional torts.”
Id. (internal quotation marks and citation omitted).
Thus, a
plaintiff who files a Section 1983 action against a municipality
must plead the following elements: “(1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.”
Brewster, 349 F. Supp. 2d at
549 (internal quotation marks and citation omitted).
See also
W.A. v. Hendrick Hudson Cent. Sch. Dist., No. 14-CV-8093, 2016 WL
1274587,
at
*9
(S.D.N.Y.
Mar.
31,
2016)
(“a
plaintiff
must
establish a causal link between the municipality’s policy, custom,
or practice and the alleged constitutional injury”).
The
plaintiff
will
establish
a
municipal
policy
or
custom by alleging: (1) the municipality has officially endorsed
a formal policy; (2) municipal officials have taken actions or
made
decisions
based
on
final
decision-making
authority
that
caused the alleged violation of civil rights; (3) the existence of
a
practice
significantly
“persistent
and
widespread”
to
be
considered a “custom of which constructive knowledge can be implied
on the part of policymaking officials”; or (4) the policymakers’
failure
to
appropriately
train
18
or
supervise
subordinates,
“amounting to ‘deliberate indifference’ to the rights of those who
come in contact with the municipal employees.”
Bonds v. Suffolk
Cty. Sheriff’s Dep’t, No. 05-CV-3109, 2006 WL 3681206, at *2
(E.D.N.Y. Dec. 5, 2006) (citations omitted).
At the motion to
dismiss phase of an action, “plaintiff need not prove that she
would succeed on her claim of Monell liability, but must merely
show that she has a plausible claim that would entitle her to
relief.”
Drees v. Cty. of Suffolk, No. 06-CV-3298, 2007 WL
1875623, at *19 (E.D.N.Y. Jun. 27, 2007).
Here, Plaintiff alleges that the County is liable under
Section 1983 based on three theories: (1) the County’s policy that
a sexual harassment complaint investigation will only begin after
the completion of the parallel criminal investigation, (2) the
County’s policy or custom of condoning sexual harassment, and (3)
the County’s deliberate indifference based on its failure to
supervise and train employees.
(Pl.’s Br. at 5-7.)
The Court
will address each theory in turn.
A.
Complaint Investigation Policy
Plaintiff alleges that the decision to place the internal
investigation “on hold” pending the criminal investigation was
made by Sergeant Lynch at the direction of Commissioner Webber and
that Commissioner Webber “has final decision-making authority and
is a policymaker in charge of the report of and the investigation
into a complaint of sexual harassment by an employee of the Police
19
Department.”
(Pl.’s Br. at 5-6.)
The Court construes Plaintiff’s
brief as arguing that Commissioner Webber’s inaction creates a
basis
for
Monell
policymaker.
liability
based
The Court disagrees.
on
his
status
as
a
final
(Pl.’s Br. at 5-6.)
“‘When an official has final authority over significant
matters involving the exercise of discretion, the choices he [or
she] makes represent government policy.’”
Hendrick Hudson Cent.
Sch. Dist., 2016 WL 1274587, at *12 (quoting Nagle v. Marron, 663
F. 3d 100, 116 (2d Cir. 2011); alteration in original).
An
official is a final policymaker where his decisions “for practical
or legal reasons constitute the municipality’s final decisions.”
Pugliese v. Long Island R.R. Co., No. 01-CV-7174, 2006 WL 2689600,
at *4 (E.D.N.Y. Sept. 19, 2006) (internal quotation marks and
citations omitted).
Even assuming, arguendo, that Commissioner Webber is the
final
policymaker
sexual
harassment
with
respect
complaints,
to
the
internal
Amended
investigations
Complaint’s
of
sole
allegation as to his involvement in this matter is the assertion
that
Sergeant
Lynch
enforced
a
“policy”
of
placing
internal
investigations “on hold” at Commissioner Webber’s “direction and
under [his] authority.”
(Compl. ¶ 51.)
This vague allegation is
insufficient to plausibly plead that Commissioner Webber took
action that constitutes municipal policy.
Parenthetically, the
Amended Complaint also fails to establish that Sergeant Lynch’s
20
placement
of
“discriminatory
the
internal
practice
investigation
of
subordinate
“on
hold”
employees
.
was
.
.
a
so
manifest” that it can imply Commissioner Webber’s constructive
acquiescence as a policymaker.
Edwards v. Jericho Union Free Sch.
Dist., 904 F. Supp. 2d 294, 308 (E.D.N.Y. 2012) (internal quotation
marks and citation omitted).
Moreover, “[a] single incident exemplifying a custom or
policy will generally not give rise to municipal liability.” Davis
v. City of N.Y., No. 00-CV-4309, 2000 WL 1877045, at *7 (S.D.N.Y.
Dec. 27, 2000).
See also Raphael v. Cty. of Nassau, 387 F. Supp.
2d 127, 131 (E.D.N.Y. 2005) (“[i]t is well-established that a
single incident in a complaint, especially if it involved only
actors below the policy-making level, does not suffice to show a
municipal
omitted).
policy”)
(internal
quotation
marks
and
citation
Plaintiff’s allegations relate to one incident of
inaction by Sergeant Lynch, (see Am. Compl. ¶¶ 39), and Plaintiff
does not allege that the Police Department placed other internal
investigations
“on
hold”
criminal investigations.
B.
pending
the
completion
of
parallel
(See also Defs.’ Br. at 5.)
Inaction Regarding Sexual Harassment
Plaintiff argues that the Police Department’s policy of
condoning
and/or
failing
to
address
sexual
harassment--as
evidenced by Officer Thompson, Sergeant O’Shea, Lietenant Riggio,
and/or Captain Rios’ failure to investigate or take action in
21
response to Plaintiff’s disclosures of Officer Wehr’s conduct-constitutes a municipal custom.
“‘[I]naction
such
(Pl.’s Br. at 6.)
as
the
persistent
failure
to
discipline subordinates who violate persons’ civil rights could
give rise to an inference of an unlawful municipal policy of
ratification of unconstitutional conduct.’”
Peguero-Miles v. City
Univ. of N.Y., No. 13-CV-1636, 2014 WL 4804464, at *10 (S.D.N.Y.
Sept. 25, 2014) (quoting Zahra v. Town of Southold, 48 F.3d 674,
685 (2d Cir. 1995)).
See also Cowan v. City of Mt. Vernon, 95 F.
Supp. 3d 624, 642 (S.D.N.Y. 2015) (holding that the plaintiff
raised issues of fact regarding whether as a result of the Deputy
Commissioner/Commissioner
of
Human
Resources’
“failure
to
investigate Plaintiff’s complaints, the unconstitutional conduct-specifically, [her supervisor’s] pervasive sexual harassment and
intimidation--became
an
accepted
custom
of
the
City”).
Cf.
Gierlinger v. N.Y. State Police, 15 F.3d 32, 34 (2d Cir. 1994)
(holding that individual employers or responsible supervisors are
liable
pursuant
to
Section
1983
“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”).
For example, in Matusick v. Erie Cty. Water Auth., 757
F.3d 31, 62-63 (2d Cir. 2014), the Second Circuit upheld the jury’s
finding of Section 1983 liability against the state agency where
22
supervisors were aware that the plaintiff was the victim of
“frequent and severe” discrimination and harassment but failed to
act.
The Court noted, in relevant part, that “based on the
pervasiveness of the harassment and the lack of response, the jury
could
reasonably
have
found
that
[the
Executive
Director’s]
inaction and acquiescence to the harassment that [the plaintiff]
suffered allowed the harassment to become the custom and practice,
if not the policy, of the [municipal agency].”
Id. at 63.
The Court finds that the Amended Complaint plausibly
alleges inaction on the part of supervisory officials that is
sufficiently widespread to constitute a municipal custom.
In
September 2014, Plaintiff advised two superiors--Lieutenant Riggio
and Captain Rios--about Officer Wehr’s conduct and both failed to
take any action.
(Am. Compl. ¶¶ 26, 28.)
But see Pugliese, 2006
WL 2689600, at *4 (“contrary to [the plaintiff’s] suggestion,
evidence
that
his
managers
ignored
his
complaints
on
three
occasions does not establish that such actions were widespread
policy throughout [the employer]”).
While Plaintiff did not
initially disclose Officer Wehr’s identity to Captain Rios, when
Plaintiff did share Officer Wehr’s name on October 8, 2014, Captain
Rios
indicated
that
Plaintiff’s attacker.
he
already
knew
(Am. Compl. ¶ 34.)
that
Officer
Wehr
was
Captain Rios also told
Plaintiff that “there would be backlash . . . if and when she names
her attacker.” (Am. Compl. ¶ 28.) Additionally, Lieutenant Riggio
23
also
ignored
Sergeant
O’Shea’s
separate
regarding Officer Wehr’s conduct.
disclosure
to
him
(Am. Compl. ¶ 25 (“A few days
later, [Plaintiff] learned that O’Shea had revealed the June 2014
incident to his supervisor, Lieutenant Riggio[.]”)
Defendants’
position
that
the
Amended
Complaint
is
limited to allegations that various Police Department officials
failed to follow the pre-existing harassment policies set forth in
the R&P, (Defs.’ Br. at 12-13), is unduly narrow.
Complaint’s
allegedly
citation
violated
supervising
harassment
to
R&P
does
officials’
constitutes
provisions
not
dilute
failure
a
to
practice
constitute a municipal custom.
that
its
respond
The Amended
these
official
allegations
to
sufficiently
known
that
sexual
widespread
to
See Bonds, 2006 WL 3681206, at *2.
Cf. Wise v. N.Y. City Police Dep’t, 928 F. Supp. 355, 363; 364-65
(S.D.N.Y.
1996)
(holding
that,
notwithstanding
the
police
department’s official policy prohibiting sexual harassment, the
police officer raised genuine issues of fact regarding, inter alia,
her claim that “sexual harassment was so widespread to constitute
the
constructive
acquiescence
of
senior
policymakers
of
the
[police] Department”).
Defendants also argue that Plaintiff cannot establish
causation
between
deprivation.
a
policy
or
(Defs.’ Br. at 4.)
custom
and
her
constitutional
Particularly, Defendants assert
that Plaintiff’s PTSD diagnosis, inability to return to work due
24
to an allegedly hostile work environment, and loss of earning
capacity are the result of Office Wehr’s actions, not a municipal
policy.
(Defs.’ Br. at 6.)
However, Plaintiff has alleged a
causal connection between previously noted custom of the County’s
failure
to
address
sexual
constitutional injury.
Lieutenant
Riggio
altercation
with
intimidate[ed] her.”
harassment
and
her
alleged
After reporting Officer Wehr’s conduct to
and
Captain
Officer
Wehr
Rios,
Plaintiff
where
(Am. Compl. ¶ 31.)
he
had
another
“taunt[ed]
and
Plaintiff also alleges
that the Police Department’s inaction “exacerbated her emotional
pain and suffering from the assault itself” and resulted in her
being “fearful of returning to work.”
(Am. Compl. ¶¶ 33, 49.)
The Court finds that there is a causal connection between the
Police Department’s failure to address known sexual harassment and
the harms of a hostile work environment.
C.
Deliberate Indifference
A municipality is liable for inadequate training that
amounts to “deliberate indifference” where:
(1) a policymaker knows to a moral certainty
that
employees
will
confront
a
given
situation, (2) the situation either presents
the employee with a difficult choice of the
sort that training or supervision will make
less difficult or there is a history of
employees mishandling the situation, and (3)
the wrong choice by the employee will
frequently
cause
the
deprivation
of
a
citizen’s constitutional rights.
25
Raphael, 387 F. Supp. 2d at 131. The Court finds that the Complaint
fails
to
plead
Department’s
harassment.
deliberate
failure
to
indifference
train
its
Ex.
C.)
Department’s
employees
on
the
Police
regarding
sexual
The Police Department has formal policies addressing
harassment and sexual harassment.
Defs.’
based
Plaintiff
harassment
(See Defs.’ Ex. A at 9-10;
has
not
alleged
that
policies
are
inadequate,
the
nor
Police
has
she
alleged that employees do not receive sexual harassment training.
Cf. Connick v. Thompson, 563 U.S. 51, 63, 131 S. Ct. 1350, 1360,
179 L. Ed. 2d 417 (2011) (“[w]ithout notice that a course of
training is deficient in a particular respect, decisionmakers can
hardly be said to have deliberately chosen a training program that
will cause violations of constitutional rights”); Smith v. Town of
Hempstead, 21 F. Supp. 3d 202, 205 (E.D.N.Y. 2014) (holding that
the plaintiff pled deliberate indifference where she alleged that
the Town failed to disseminate its sexual harassment policy and
failed to provide sexual harassment training).
Additionally, “[a] pattern of similar constitutional
violations by untrained employees is ‘ordinarily necessary’ to
demonstrate deliberate indifference for purposes of failure to
train.”
omitted).
Connick, 563 U.S. at 62, 131 S. Ct. at 1360 (citation
See also Brewster, 349 F. Supp. 2d at 549 (a complaint
asserting deliberate indifference based on failure to train or
supervise fails to plead a custom or policy where it does not
26
“alleg[e] any facts beyond the specific instance giving rise to
the complaint . . . .”). Plaintiff has not alleged other instances
of similar constitutional violations and relies solely on the
Police
Department’s
conduct.
inaction
with
respect
to
Officer
Wehr’s
Plaintiff’s vague allegation of a “history of inaction
by the Police Department with regard to prior complaints of sexual
harassment,” (Compl. ¶¶ 33, 43), does not suffice.
Accordingly, Defendants’ motion to dismiss Plaintiff’s
Section 1983 claim against the County is DENIED as to the alleged
policy of failing to address sexual harassment and GRANTED as to
deliberate indifference and the alleged policy of commencing a
sexual
harassment
investigation
after
the
completion
of
the
parallel criminal investigation.
D.
Individual Defendants
Plaintiff also asserts a Section 1983 claim against
Bellone and Commissioner Webber, alleging that they “unlawfully
participated in and/or permitted the . . . discriminatory actions,
hostile
work
Plaintiff’s
environment,
sex
harassment[.]”
and
and/or
complaints
acts
of
(Am. Compl. ¶ 57.)
of
retaliation
discrimination
and
due
to
sexual
“To establish a claim under
Section 1983 against an individual defendant, the plaintiff must
demonstrate the defendant’s personal involvement in the alleged
discrimination.”
Cowan, 95 F. Supp. 3d at 643 (citation omitted).
However, the Amended Complaint fails to plausibly plead that
27
Bellone or Commissioner Webber were personally involved in the
hostile work environment that resulted from Officer Wehr’s sexual
assault.
Indeed, the Complaint does not allege that Bellone or
Commissioner
Webber
were
aware
of
Officer
Wehr’s
conduct.
Accordingly, Defendants’ motion to dismiss Plaintiff’s Section
1983
claim
against
Bellone
and
Commissioner
Webber
in
their
individual capacities is GRANTED.
Defendants’
motion
is
also
GRANTED
with
respect
to
Plaintiff’s Section 1983 claims against Bellone and Commissioner
Webber
in
their
official
capacities,
as
such
duplicative of the Monell claims against the County.”
claims
“are
Drees, 2007
WL 1875623, at *19.
II. Title VII
A.
Hostile Work Environment
To state a prima facie case of sexual harassment based
on a hostile work environment, the plaintiff must establish: “(1)
that she is a member of a protected group; (2) that she was the
subject of unwelcome advances; (3) that the harassment was based
upon
her
sex;
and
(4)
that
the
harassment
affected
a
term,
condition or privilege of employment.”
Schmidt v. State Univ. of
N.Y.
2006
at
Stonybrook,
No.
02-CV-6083,
WL
1307925,
at
*7
(E.D.N.Y. May 9, 2006) (internal quotation marks and citation
omitted).
Accord Bethea v. City of N.Y., No. 11-CV-2347, 2014 WL
2616897, at *5 (E.D.N.Y. Jun. 12, 2014).
28
Defendants concede that
Plaintiff is a member of a protected class and Wehr’s conduct
constituted an “unwelcome advance.”
(Defs.’ Br. at 15.)
However,
Defendants argue: (1) the Amended Complaint does not support the
inference that Officer Wehr’s harassment was based on gender, and
(2) Plaintiff does not allege facts establishing that Officer
Wehr’s
harassment
employment.
affected
the
terms
and
conditions
of
her
(Defs.’ Br. at 15.)
“[F]or sexual harassment to be actionable, it must be
sufficiently severe or pervasive ‘to alter the conditions of [the
victim’s]
employment
and
create
an
abusive
environment.’”
Schmidt, 2006 WL 1307925, at *10 (quoting Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49
(1986);
second
alteration
in
original).
This
standard
necessitates both an objective and subjective inquiry as “the
conduct complained of must be severe or pervasive enough that a
reasonable person would find it hostile or abusive, and the victim
must subjectively perceive the work environment to be abusive.”
Littlejohn v. City of N.Y., 795 F.3d 297, 321 (2d Cir. 2015)
(internal quotation marks and citation omitted).
In determining whether an environment is hostile, the
Court examines all of the circumstances, which “‘may include the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance;
and
whether
it
unreasonably
29
interferes
with
an
employee’s work performance.’”
Redd v. N.Y. Div. of Parole, 678
F.3d 166, 175 (2d Cir. 2012) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 371, 126 L. Ed. 2d 295
(1993)) (emphasis omitted).
While one single act can transform
the plaintiff’s employment, “[i]solated acts, unless very serious,
do not meet the threshold of severity or pervasiveness.”
Moore v.
Verizon, No. 13-CV-6467, 2016 WL 825001, at *11 (S.D.N.Y. Feb. 5,
2016) (internal quotation marks and citation omitted; alteration
in original).
The Court finds that Plaintiff has plausibly pleaded a
hostile work environment claim.
First, Defendants’ argument that
Officer Wehr’s actions were not based on gender is quickly disposed
of.
(Defs.’ Br. at 15.)
The overtly sexual nature of Officer
Wehr’s conduct leaves no question that such action took place
because of Plaintiff’s gender.
Cf. Reid v. Ingerman Smith LLP,
876 F. Supp. 2d 176, 183-84 (E.D.N.Y. 2012) (holding, in the
context of the plaintiff’s hostile environment claim based on samesex sexual harassment, that “[the supervisor’s] act of grabbing
[the plaintiff’s] breast as a ‘sexual advance’ is sufficient to
show that Sadowski’s conduct was ‘because of’ [the plaintiff’s]
sex”).
Second, Plaintiff’s allegation that Officer Wehr forced
Plaintiff to touch his penis is sufficiently severe to plead a
change in the terms and conditions of employment.
30
“‘[D]irect
contact with an intimate body part constitutes one of the most
severe forms of sexual harassment,’” and similar allegations have
sufficed to survive motions to dismiss and motions for summary
judgment.
Reid, 876 F. Supp. 2d at 185-86 (quoting Redd, 678 F.3d
at 180; collecting cases) (denying the defendant’s motion to
dismiss where the plaintiff alleged that her former supervisor
“grabbed and squeezed” one of her breasts on one occasion).
See
also Lashley v. New Life Business Inst., Inc., No. 13-CV-2683,
2015 WL 1014128, at *7 (E.D.N.Y. Mar. 9, 2015) (holding that where
the defendant grabbed, rubbed, and performed oral sex on the
plaintiff “[t]his unwanted physical contact and sex act alone are
sufficient to find a hostile work environment”). Moreover, Officer
Wehr’s conduct is compounded by the allegation that he pressed his
genitals against Plaintiff’s back on a separate occasion.
(See
Am. Compl. ¶ 18.)4
1. Employer Liability
When the harasser is a co-worker, the employer is only
liable for negligence, namely “that the employer knew or should
have known about the harassment and failed to take corrective
action, in permitting the harassing conduct to endure.
Bethea,
The Court need not determine whether Plaintiff has plead a
hostile work environment based on Officer Wehr’s continued
contact with her based on its determination that Officer Wehr’s
sexual assault was sufficient to plead the existence of a
hostile work environment. (See Pl.’s Br. at 12-14.)
4
31
2014 WL 2616897, at *5.
To establish that her employer failed to
take appropriate action, the plaintiff must demonstrate: “(1)
someone had actual or constructive knowledge of the harassment,
(2)
the
knowledge
of
this
individual
can
be
imputed
to
the
employer, and (3) the employer’s response, in light of that
knowledge, was unreasonable.”
Duch v. Jakubek, 588 F.3d 757, 763
(2d Cir. 2009).
The employer is charged with actual or constructive
knowledge of harassment where: (1) the official’s status in the
management hierarchy qualifies him as a “proxy” for the company,
(2) the official has “a duty to act on the knowledge and stop the
harassment,” or (3) the official has a “duty to inform the company
of the harassment.”
Torres v. Pisano, 116 F.3d 625, 636-37 (2d
Cir. 1997) (citations omitted).
to
a
non-supervisory
However, when disclosure is made
co-worker
who
is
not
authorized
to
investigate, suspend, or terminate the alleged harasser, such coworker’s failure to act will only render the employer liable where
the non-supervisory employee “has an official or strong de facto
duty to act as a conduit to management for complaints about work
conditions.”
Id. (internal quotation marks and citation omitted).
Defendants argue that Plaintiff’s allegations regarding
her disclosures to Officer Thompson, Lieutenant Riggio, Sergeant
O’Shea,
and
Captain
Rios
do
not
32
plead
that
the
County
had
constructive knowledge of Wehr’s harassment.5
(Defs.’ Br. at 19-
24.)
if
Defendants
further
argue
that
even
the
Complaint
adequately pleads constructive knowledge, Sergeant O’Shea and
Lieutenant Rios responded adequately.
(Defs.’ Br. at 22-24.)
The
Court will address Plaintiff’s disclosures to Lieutenant Riggio
and Captain Rios in turn.6
a.
Lieutenant Riggio
The Court is unpersuaded by Defendants’ attempt to cast
Plaintiff’s disclosure to Lieutenant Riggio as akin to dropping a
“hint.”
(Defs.’ Br. at 21.)
While Plaintiff did not name Officer
Wehr when speaking with Riggio, she advised that a person in Crime
Control who used to work in the Sixth Precinct exposed himself to
her in the COPE office.7
(Compl. ¶ 26.)
The Amended Complaint
plausibly alleges that Plaintiff provided Riggio with notice of
Defendants concede that the County had actual knowledge of
Officer Wehr’s harassment on October 8, 2014, when Plaintiff
“told her superiors and union delegates.” (Defs.’ Br. at 19.)
5
As set forth infra, based on the Court’s determination that
Plaintiff’s disclosures to Lieutenant Riggio and Captain Rios
suffice to provide the County with constructive knowledge, the
Court need not determine whether Plaintiff’s disclosures to nonsupervisory employees--namely, Officer Thompson and Sergeant
O’Shea--also provided the County with constructive knowledge.
6
The alleged inconsistency in the Amended Complaint as to
whether Officier Wehr worked in Crime Control at the time of
Plaintiff’s conversation with Lieutenant Riggio, (Defs.’ Br. at
20), is of no moment with respect to the Court’s analysis in
light of the Amended Complaint’s allegation that Plaintiff
disclosed to Lieutenant Riggio that a coworker exposed himself
to her.
7
33
sexual harassment notwithstanding her decision not to disclose
Officer Wehr’s identity.
Defendants
also
argue
that
Plaintiff’s
allegations
regarding Lieutenant Riggio do not suffice to plead constructive
knowledge because Plaintiff did not indicate that the incident in
question was part of an ongoing course of conduct, citing Murray
v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 250 (2d Cir. 1995).
(Defs.’ Br. at 20.)
However, the facts and posture of Murray are
wholly dissimilar from those at bar.
In Murray, the plaintiff, a
dental student, alleged harassment by a patient in the college’s
dental clinic.
Murray, 57 F.3d at 245-46.
The Second Circuit
analyzed Title VII hostile work environment principles in the
context of the plaintiff’s Title IX claim and held, inter alia,
that the dental college could not be charged with constructive
knowledge based on Plaintiff’s complaint to a faculty member that
the patient was “staring at [the plaintiff] and trying to get her
attention.” Id. at 245, 250 (internal quotation marks and citation
omitted).
The Second Circuit held that the complaint failed to
allege that the patient’s conduct “was of an ongoing sexually
offensive nature,” and while the plaintiff considered the conduct
to have sexual overtones given the patient’s prior behavior, she
did not inform the faculty member of the “sexual connotations” or
that this inappropriate behavior “was part of that ongoing course
of harassment.”
Id. at 250.
34
The Court finds that the holding of Murray is limited to
its facts and declines to adopt Defendants’ apparent position that
constructive knowledge requires disclosure of an ongoing course of
conduct.
The Murray patient’s behavior was not overtly sexual and
the Second Circuit aptly noted that the plaintiff needed to either
explain the sexual connotations of the patient’s behavior to the
faculty
member
harassment.
or
inform
Conversely,
him
the
of
the
conduct
patient’s
disclosed
to
history
of
Lieutenant
Riggio by Plaintiff--that a coworker exposed himself to her in the
COPE office--does not require further explanation for Lieutenant
Riggio to grasp the obvious sexual nature of the act in question.
As
Lieutenant
Riggio
failed
to
take
any
action
in
response to Plaintiff’s disclosure, the Court finds that he failed
to “take appropriate remedial action.”
Duch, 588 F.3d at 762
(internal quotation marks and citation omitted).
b.
Whether
Captain Rios
Plaintiff’s
disclosure
to
Captain
constitutes constructive notice presents a close issue.
Rios
The
Amended Complaint alleges that after Plaintiff told Captain Rios
that an unnamed coworker “exposed himself to her with an erect
penis and forcibly made her touch his penis,” she told Captain
Rios not to report the incident because she would report it when
she was ready.
(Am. Compl. ¶ 28.)
Defendants argue that Captain
Rios’ failure to report Plaintiff’s disclosure was reasonable in
35
light of her request that he not report the incident, analogizing
this matter to the facts of Duch. (Defs.’ Br. at 23-24.) Plaintiff
avers
that
Captain
Rios
disclosure confidential.
acted
unreasonably
(Pl.’s Br. at 19.)
in
keeping
her
The Court concurs
with Plaintiff.
The
question
of
whether
a
supervisor
behaves
unreasonably by honoring an employee’s request for confidentiality
is determined on a case by case basis.
Torres, 116 F.3d at 639.
In Torres, the Second Circuit held that the plaintiff’s supervisor
acted reasonably in failing to report her allegations of harassment
where the plaintiff wrote a letter that “recounted only a few
relatively minor incidents of harassment” and requested that the
supervisor “keep the matter ‘confidential.’”
Id. at 638-39.
The
Court noted that “[t]here is certainly a point at which harassment
becomes so severe that a reasonable employer simply cannot stand
by, even if requested to do so by a terrified employee.”
639.
Id. at
However, the Court concluded that Torres was not such a case
based on the absence of any allegations of “serious physical or
psychological harm that would have occurred if the employer did
not act forthwith,” as well as the fact that the plaintiff was the
only victim of her coworker’s harassment.
Id.
In Duch, the Second Circuit similarly concluded that a
non-supervisory
employee
behaved
reasonably
in
honoring
the
plaintiff’s request for confidentiality regarding her harassment
36
allegations.
Duch, 588 F.3d at 764.
The plaintiff advised the
non-supervisory employee about “most incidents” involving her coworker’s harassment--which included “physical contact, sexually
graphic language, and physical gestures”--and asked that she not
report these incidents.
Id. at 760, 764.
The Court held that the
non-supervisory employee did not breach a duty to the plaintiff
where she was not “aware of the psychological toll that [the
coworker’s]
harassment
plaintiff].”
was
allegedly
inflicting
on
[the
Id. at 764.
The Court finds that the Complaint plausibly pleads a
situation sufficiently severe that a reasonable supervisor would
not have honored Plaintiff’s request for confidentiality.
As
previously noted, Plaintiff disclosed to Captain Rios that a police
officer “exposed himself to her with an erect penis and forcibly
made her touch his penis.”
(Compl. ¶ 28.)
Unlike the plaintiffs
in Torres and Duch, Plaintiff has plead facts demonstrating that
Captain Rios was aware of the psychological toll that Officer
Wehr’s behavior inflicted on Plaintiff.
Captain Rios approached
Plaintiff after her coworkers advised him that there was “something
wrong” with Plaintiff and “she was not acting like herself.”
(Compl. ¶ 28.)
Plaintiff also alleges that she told Captain Rios
that she was afraid of coming in contact with her attacker again.
(Compl. ¶ 28.)
The fact that Plaintiff did not name her attacker
does not obviate Captain Rios’ duty to address allegations of
37
sexual assault, particularly where the psychological harm suffered
by Plaintiff was evident.
Captain Rios’ “hostile” response of asking Plaintiff why
she failed to scream and yell at her attacker and why she waited
to report the incident was clearly unreasonable.
This
response
was
compounded
by
Captain
Rios’
(Compl. ¶ 28.)
inaction
and
assertion that Plaintiff would suffer “backlash” when she named
her attacker.
(Compl. ¶ 28.)
Accordingly, Plaintiff has plausibly stated a claim for
hostile work environment.
hostile
work
Plaintiff has plead the existence of a
environment,
as
well
constructive knowledge to the County.
as
a
basis
for
imputing
Plaintiff’s disclosures to
Lieutenant Riggio and Captain Rios were sufficient to charge the
County
with
constructive
knowledge
and
their
unreasonable
responses to such disclosures forms a basis for imputing employer
liability.
Thus,
Defendants’
motion
to
dismiss
Plaintiff’s
hostile work environment claim is DENIED.
B.
Retaliation
Plaintiff argues that the Amended Complaint asserts a
Title
VII
retaliation
claim
based
on
two
theories:
(1)
a
retaliatory hostile work environment, and (2) retaliation based on
the Police Department’s failure to complete the Injured Employee
Report that would start Plaintiff’s worker’s compensation process.
(Pl.’s Br. at 23-25.)
38
To state a claim for retaliation under Title VII, a
plaintiff
must
plead
facts
demonstrating
that:
“(1)
she
participated in a protected activity known to the defendant; (2)
the defendant took an employment action disadvantaging her; and
(3) there exists a causal connection between the protected activity
and the adverse action.”
Patane v. Clark, 508 F.3d 106, 115 (2d
Cir. 2007) (citation omitted).
Title VII retaliation claims are
analyzed pursuant to the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L.3d 2d 668 (1973).
Littlejohn, 795 F.3d at 315.
“[H]owever,
plaintiff is not required to plead facts sufficient to establish
a prima facie case of Title VII retaliation in order to survive a
Rule 12(b)(6) motion to dismiss.” James v. Countrywide Fin. Corp.,
849 F. Supp. 2d 296, 311 (E.D.N.Y. 2012).
Rather, the plaintiff
“need only give plausible support to the reduced prima facie
requirements that arise under McDonnell Douglas in the initial
phase of a Title VII litigation.”
“To
establish
that
Littlejohn, 795 F.3d at 316.
a
retaliatory
hostile
work
environment constitutes a materially adverse change that might
dissuade a reasonable worker from reporting activity prohibited by
Title VII, a plaintiff must satisfy the same standard that governs
hostile
workplace
claims
by
showing
that
the
incidents
of
harassment following complaints were sufficiently continuous and
concerted to have altered the conditions of [her] employment.”
39
Hahn v. Bank of Am., Inc., No. 12-CV-4151, 2014 WL 1285421, at *22
(S.D.N.Y. Mar. 31, 2014), aff’d, 607 F. App’x 55 (2d Cir. 2015)
(internal quotation marks and citations omitted).
demonstrate
causation
between
the
protected
Further, to
activity
and
hostility, the plaintiff must establish “some increase in the
discrimination
or
harassment--either
a
ratcheting
up
of
the
preexisting behavior, or new, additional forms of harassment[.]”
Bacchus v. N.Y. City Dep’t of Educ., 137 F. Supp. 3d 214, 244
(E.D.N.Y. Sept. 30, 2015) (internal quotation marks and citations
omitted; alteration in original).8
The Court finds that Plaintiff has failed to plausibly
plead a retaliatory hostile work environment claim.
engaged
in
a
protected
activity
by
complaining
Plaintiff
about
sexual
harassment, see Kantor-Hopkins v. Cyberzone Health Club, No. 06CV-0643,
2007
WL
2687665,
at
*4
(E.D.N.Y.
Sept.
10,
2007)
(“[c]omplaining about sexual harassment is a protected activity”).
While, as addressed above, Plaintiff has pled the existence of a
hostile work environment, she has failed to allege that the
While Courts have questioned whether the Supreme Court’s
decision in Burlington N. and Santa Fe Ry. Co. v. White, 548
U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), changed the
standard for retaliatory hostile work environment claims, “[i]n
the years following Burlington, nearly every decision to address
a claim for retaliatory hostile work environment has held that a
plaintiff must satisfy the same standard used to evaluate
conventional hostile work environment claims.” Hahn, 2014 WL
1285421, at *22 n.14 (internal quotation marks, alteration and
citation omitted).
8
40
harassment that occurred after she complained was “sufficiently
continuous and concerted to have altered the conditions of [her]
employment.”
Hahn, 2014 WL 1285421, at *22.
Plaintiff’s sole
allegations of harassment after she complained to Captain Rios and
Lieutenant Riggio consists of: (1) the October 6, 2014, incident
in which Officer Wehr “taunt[ed]” and “intimidate[ed]” Plaintiff
while she was stationed outside of another police officer’s home,
(Compl. ¶ 31), and (2) conversations with Sergeant O’Shea and
Lieutenant Riggio in October and December 2014 in which they
questioned why she waited to come forward and advised Plaintiff
that other members of the Police Department felt that there was
“more to the story,” (Compl. ¶¶ 40-41).
These allegations fail to
plausibly assert that continuous, intensified harassment occurred
after Plaintiff complained about Officer Wehr’s conduct.
Plaintiff relies on Bethea for the notion that the Court
should
consider
Defendants’
alleged
failure
to
remediate
the
harassment in determining her retaliatory hostile work environment
claim.
issue
(Pl.’s Br. at 25.)
of
employer
However, the Court need not reach the
liability
underlying retaliation claim.
in
the
absence
of
a
plausible
Moreover, while the Bethea Court
upheld a Title VII retaliation claim, the plaintiff in that matter
alleged that immediately after complaining about sexual harassment
she was suspended, and she was later placed on modified assignment
and subjected to an administrative transfer that resulted in a
41
loss of overtime, change of assignments, and loss of income.
Bethea, 2014 WL 2616897, at *7.
Alternatively,
Plaintiff
alleges
that
the
County
retaliated against her by failing to complete the Injured Employee
Report and thereby forcing her to use her accruals during her leave
of absence.
(Pl.’s Br. at 25.)
The Amended Complaint alleges
that Plaintiff had to use sick, vacation, and personal leave days
to receive a paycheck during her leave of absence and as a result,
she has been precluded from receiving a lump sum payment upon her
retirement for days accrued.
(Am. Compl. ¶ 47.)
The Amended
Complaint also alleges that Captain Rios failed to complete the
Injured Employee Report that would start the process for Plaintiff
to receive Worker’s Compensation.
(Am. Compl. ¶ 48.)
However,
the Amended Complaint fails to allege that Captain Rios failed to
complete
the
Plaintiff’s
Injured
sexual
Employee
harassment
Report
in
complaint.
retaliation
Rather,
for
Plaintiff
appears to assert that Captain Rios’ failure to complete this
report was discriminatory, not retaliatory, based on the Amended
Complaint’s allegation that “[s]imilarly situated male employees,
who suffered from PTSD had the necessary paperwork filled out in
order to receive Workmen’s Compensation.”
Parenthetically,
Plaintiff’s
(Am. Compl. ¶ 48.)
third
cause
of
action
asserts that the County “retaliated against Plaintiff by failing
to conduct a reasonable investigation into her complaint of sexual
42
harassment or guarantee a work place free of sexual harassment in
response to her opposing discriminatory practices in violation of
Title VII[.]”
(Am. Compl. ¶ 61.)
To the extent that the Amended
Complaint can be construed as asserting that the County’s failure
to investigate Plaintiff’s sexual harassment complaint constitutes
an adverse action, the Second Circuit has held that “[a] failure
to investigate can be considered an adverse employment action only
if the failure is in retaliation for some separate, protected act
by the plaintiff.”
Cir.
2016)
Brayboy v. O’Dwyer, 633 F. App’x 557, 558 (2d
(emphasis
citation omitted).
supplied;
internal
quotation
marks
and
Accordingly, Defendants’ motion to dismiss
Plaintiff’s retaliation claim is GRANTED.
C.
Discrimination
The Court notes that Defendants’ motion and Plaintiff’s
brief fail to address Plaintiff’s Title VII discrimination claim,
(see Am. Compl. ¶ 59 (“Defendant, the County, has subjected
Plaintiff to discrimination based on her sex . . . .”)).
In any
event, while the Amended Complaint fails to state a disparate
treatment claim based on the vague allegation that “[s]imilarly
situated male employees, who suffered from PTSD had the necessary
paperwork filled out in order to receive Workmen’s Compensation,”
(Am. Compl. ¶ 48),
the Court finds that the Amended Complaint
plausibly pleads a Title VII discrimination claim based on the
allegation that Plaintiff was moved to a less desirable office
43
than her male partner and Inspector Palmieri “felt they could not
have a woman off the wall, carrying on around the precinct.”
Compl. ¶¶ 14-16.)
(Am.
Accordingly, Defendants’ motion is DENIED to
the extent it seeks dismissal of Plaintiff’s discrimination claim.
III. NYSHRL Claims Against the County
“New York courts require the same standard of proof for
claims brought under the NYHRL as for those brought under Title
VII [and the Court] analyze[s] these claims in tandem.”
Valenti
v. Massapequa Union Free Sch. Dist., No. 09-CV-09771, 2012 WL
1038811, at *20 (E.D.N.Y. Mar. 28, 2012) (internal quotation marks
and citation omitted; alterations in original).
Accordingly,
Defendants’ motion to dismiss the NYSHRL claims against the County
is GRANTED with respect to Plaintiff’s retaliation claim and DENIED
with
respect
discrimination
to
Plaintiff’s
claims
for
hostile
the
same
work
reasons
environment
set
forth
and
above
regarding Plaintiff’s Title VII claims.
IV. NYSHRL Claim Against Bellone and Commissioner Webber
The Court construes the Amended Complaint as asserting
claims against Bellone and Commissioner Webber pursuant to NYSHRL
Sections 296(1) and (7), as well as an aiding and abetting claim
under NYSHRL Section 296(6).
(Am. Compl. ¶¶ 62-68.)
NYSHRL Section 296(1) bars employers from discriminating
against employees or job applicants based on, inter alia, sex.
Jericho Union Free Sch. Dist., 904 F. Supp. 2d at 304; N.Y. Exec.
44
Law 296(1).
“Individuals are liable as employers under Section
296(1)
if
only
they
have
an
ownership
interest,
if
they
themselves have the authority to hire and fire employees.”
Id.
(internal quotation marks and citations omitted).
or
Additionally,
the plaintiff must establish that the defendant “had some . . .
connection [to] the underlying [claim].”
Magnotti v. Crossroads
Healthcare Mgmt. LLC, No. 14-CV-6679, 2016 WL 3080801, at *2
(E.D.N.Y. May 27, 2016) (internal quotation marks and citation
omitted).
Here, while Plaintiff alleges that Bellone is chief
executive officer of the County, the Amended Complaint does not
assert
that
Bellone
has
Department personnel.
Complaint
County
alleges
department
Legislature.”
that
authority
to
hire
(Am. Compl. ¶ 7.)
Bellone
heads
“with
(Am. Compl. ¶ 7.)
is
the
and
fire
Police
Indeed, the Amended
responsible
approval
for
of
appointing
the
County
The Amended Complaint fails to
allege that Commissioner Webber has the authority to hire and fire
Police Department employees, although the Court acknowledges that
Commissioner Webber likely possesses such authority given his high
ranking position in the Police Department.
In any event, as set
forth infra, the Amended Complaint fails to allege that Bellone or
Commissioner Webber had any connection to Plaintiff’s underlying
claims.
45
NYSHRL Section 296(7) provides, in relevant part, that
it is unlawful for an individual “to retaliate or discriminate
against any person because he or she has opposed any practices
forbidden under this article.”
a
prima
facie
NYSHRL
N.Y. Exec. Law 296(7).
retaliation
claim,
the
To state
plaintiff
must
demonstrate: “(1) participation in a protected activity; (2) that
the defendant knew of the protected activity; (3) an adverse
employment
action;
and
(4)
a
causal
connection
between
protected activity and the adverse employment action.”
the
Pedi v.
Gov’t Emps. Ins. Co., No. 11-CV-5977, 2012 WL 6918388, at *5
(S.D.N.Y. Dec. 10, 2012) (internal quotation marks and citation
omitted).
Again, as addressed infra, the Amended Complaint fails
to plead that Bellone or Commissioner Webber had any involvement
in the events precipitating this action. Plaintiff does not allege
that
Bellone
or
Commissioner
Webber
retaliated
against
her,
discriminated against her, or even had any contact with her.
While, as set forth above, Plaintiff has stated a retaliation claim
against the County, the Amended Complaint does not allege that
Bellone
or
Commissioner
Webber
knew
of
Plaintiff’s
protected
activity of complaining about sexual harassment.
NYSHRL Section 296(6) provides that “[i]t shall be an
unlawful discriminatory practice for any person to aid, abet,
incite, compel or coerce the doing of any of the acts forbidden
under this article, or to attempt to do so.”
46
N.Y. EXEC. LAW
§ 296(6).
Individuals may be liable under Section 296(6) if they
“actually
participate[d]
discrimination claim.”
in
the
conduct
giving
rise
to
a
Edwards v. Khalil, No. 12-CV-8442, 2016 WL
1312149, at *24 (S.D.N.Y. Mar. 31, 2016) (internal quotation marks
and citation omitted).
Actual participation does not require that
the defendant “take part in the primary violation” as “[a]n
individual [in] a supervisory role may also be held liable for a
failure to take appropriative investigative or remedial measures
upon being informed of offensive conduct.” Id. (internal quotation
marks and citation omitted).
Plaintiff argues that Bellone and Commissioner Webber
were
“personally
involved”
because
they
“creat[ed]
and
enforce[ed]” County policies and were “deliberately indifferent to
the condoning of sexual harassment by Police Department members.”
(Pl.’s Br. at 27.)
that
Bellone
or
However, the Amended Complaint does not allege
Commissioner
Webber
created
or
enforced
any
policies; at most, the Complaint alleges that Lynch “held off” on
her
internal
investigation
“at
authority of Bellone and Webber.”
the
direction
and
under
(Am. Compl. ¶ 51.)
the
In any
event, the Amended Complaint does not allege that Bellone or
Commissioner Webber were “actually aware of any harassment or
complaints.”
D’Annunzio v. Ayken, Inc., 25 F. Supp. 3d 281, 293-
94 (E.D.N.Y. Jun. 10, 2014) (granting summary judgment on the
NYSHRL aiding and abetting sexual harassment claim where the
47
defendant was responsible for, inter alia, failing to distribute
the employer’s sexual harassment policy but was not “actually aware
of any harassment or complaints, and existing caselaw does not
support
NYSHRL
liability
absent
this
knowledge”)
(collecting
cases).
Accordingly, Defendants’ motion to dismiss Plaintiff’s
NYSHRL claim against Bellone and Commissioner Webber is GRANTED.
V.
Leave to Amend
The Second Circuit has held that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to amend
the complaint.”
Cir. 1999).
Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d
See also FED. R. CIV. P. 15(a)(2) (“[t]he court should
freely give leave [to amend] when justice so requires”). “However,
a district court has the discretion to deny leave to amend where
there is no indication from a liberal reading of the complaint
that a valid claim might be stated.”
Perri v. Bloomberg, No. 11-
CV-2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012).
While the Court is mindful that Plaintiff has already
been
granted
Electronic
one
Order
opportunity
dated
to
December
amend
18,
the
2015),
Complaint,
the
Court
(see
GRANTS
Plaintiff leave to amend the claims dismissed pursuant to this
Memorandum and Order.
48
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss
(Docket
Entry
14)
is
GRANTED
IN
PART
and
DENIED
IN
PART.
Defendants’ motion is DENIED as to Plaintiff’s Section 1983 claim
against the County with respect to the alleged policy of failing
to address sexual harassment and GRANTED with respect to deliberate
indifference
and
the
alleged
policy
of
commencing
sexual
harassment investigations after the completion of the parallel
criminal
investigation.
Defendants’
motion
is
GRANTED
with
respect to Plaintiff’s Section 1983 claim against Bellone and
Commissioner Webber in their official and individual capacities.
Defendants’ motion is DENIED with respect to Plaintiff’s hostile
work environment and discrimination claims against the County
under
Title
VII
and
the
NYSHRL
and
GRANTED
with
respect
to
Plaintiff’s retaliation claims against the County under Title VII
and the NYSHRL.
Defendants’ motion is GRANTED with respect to
Plaintiff’s NYSHRL claims against Bellone and Commissioner Webber.
Plaintiff
is
GRANTED
leave
to
amend
the
Amended
Complaint to amend all dismissed claims within thirty (30) days of
the date of this Memorandum and Order.
SO ORDERED.
Dated:
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
September
27 , 2016
Central Islip, New York
49
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