Olsen v. Suffolk County Police Department et al

Filing 51

MEMORANDUM & ORDER granting in part and denying in part 45 Motion for Summary Judgment; For the foregoing reasons, the County's summary judgment motion (D.E. 45) is GRANTED IN PART and DENIED IN PART. The County's motion is DENIED as to Plaintiff's Section 1983 claim with respect to the alleged policy of condoning or failing to address sexual harassment, DENIED as to Plaintiff's hostile work environment claim under Title VII and NYSHRL, and GRANTED as to Plaintiff's discrimination claim under Title VII and NYSHRL. The parties are directed to file letters within fourteen (14) days of the date of this Memorandum and Order setting forth their respective positions on scheduling a settlement conference with Judge Ann e Y. Shields. Additionally, as ordered by Judge Shields on March 16, 2018, the parties shall file their Joint Pretrial Order within sixty (60) days of the date of this Memorandum and Order. (See Mar. 16, 2018 Elec. Order.) So Ordered by Judge Joanna Seybert on 3/25/2019. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
CINDY OLSEN,
Plaintiff,

MEMORANDUM & ORDER
15-CV-4064(JS)(AYS)

-against–
SUFFOLK COUNTY,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Thomas Ricotta, Esq.
Matthew I. Marks, Esq.
White Ricotta & Marks, P.C.
86-12 37th Avenue
Jackson Heights, New York 11372
For Defendant:

Daniel E. Furshpan, Esq.
Elaine M. Barraga, Esq.
John R. Petrowski, Esq.
Suffolk County Attorney’s Office
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, New York 11788

SEYBERT, District Judge:
Before the Court is defendant Suffolk County’s (the
“County”)

summary

judgment

motion

in

this

action

commenced

pursuant to 42 U.S.C. § 1983 (“Section 1983”), Title VII of the
Civil Rights Act of 1964 (“Title VII”), and New York State Human
Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), by plaintiff
Cindy Olsen (“Plaintiff”).

(Cty.’s Mot., D.E. 45.)

For the

following reasons, the County’s motion is GRANTED IN PART AND
DENIED IN PART.

In this Court’s September 27, 2016 Memorandum and Order
granting in part and denying in part the County’s (and other, nowdismissed defendants’) motion to dismiss (the “2016 Order”), the
Court detailed the facts alleged in the Amended Complaint, which
is the operative pleading.

Olsen v. Suffolk Cty., No. 15-CV-4064,

2016 WL 5395846 (E.D.N.Y. Sept. 27, 2016) (“2016 Order”); (see
generally Am. Compl., D.E. 10.)

The Court assumes the parties’

familiarity with the 2016 Order--including the alleged facts and
the

legal

standards

governing

the

asserted

claims--and

the

standards governing the disposition of summary judgment motions.
In the 2016 Order, the Court found that Plaintiff’s
allegations against the County were sufficient with respect to
(1) Plaintiff’s Section 1983 claim regarding the County’s alleged
policy of condoning or failing to address sexual harassment, 2016
Order, 2016 WL 5395846, at *8-10; (2) Plaintiff’s hostile work
environment claim under Title VII and NYSHRL related to Wehr’s
alleged

misconduct,

id.

at

*11-14;

and

(3) Plaintiff’s

discrimination claim under Title VII and NYSHRL arising out of her
transfer to a less desirable office than her male partner, id. at
16.

Resolving all ambiguities and drawing all permissible factual

inferences in Plaintiff’s favor, the Court finds that evidence
supports the allegations in the Amended Complaint.1

The County’s

The Court has considered the parties’ memoranda of law (D.E.
45-17, 48, and 49), the County’s Local Civil Rule 56.1
1

2

summary judgment motion--which primarily relies on legal arguments
identical to those that failed when the County moved to dismiss-is therefore denied as to all claims except for Plaintiff’s gender
discrimination claim.
I.

Summary Judgment is Denied as to Plaintiff’s Section 1983
Claim for Condoning or Failing to Address Sexual Harassment
The

County’s

arguments

Section 1983 claim are unavailing.

regarding

Plaintiff’s

First, the County argues that

there is no basis for Monell liability because “the record evinces
that the County strongly opposes sexual harassing conduct and takes
swift remedial action once such conduct is reported.”

(Cty.’s

Br., D.E. 45-17, at 13; see generally Cty.’s Br. at 13-16.)
points

to

evidence

that

(1) Suffolk

County

Police

It

Department

(“SCPD”) members in whom Plaintiff confided before October 8, 2014
expressed concern and encouraged her to report the incident with
Wehr; (2) SCPD implements a strong anti-sexual-harassment policy
with guidelines on prevention and reporting; and (3) all SCPD
members

are

annually

trained

on

anti-harassment

rules

and

procedures. (Cty.’s Br., at 14.) However, as the Court previously
ruled, municipal liability may still attach given evidence that
Plaintiff disclosed the alleged harassment to two supervisors (as
well as two lower-level employees) who failed to investigate or

Statements and Plaintiff’s Counterstatements (D.E. 45-2, 45-13,
46, and 46-1), and all relevant exhibits.
3

address the allegations.

2016 Order, 2016 WL 5395846, at *6-9

(“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.”).
Second,

the

County

renews

its

attempt

to

cast

Plaintiff’s Section 1983 cause of action as the “antithesis of a
Monell claim.”

(Cty.’s Br. at 16-17.)

Specifically, it maintains

that the claim should be dismissed because “Plaintiff claims that
she was injured as a result of [SCPD] members not following the
established policies and customs of the [SCPD], codified in the R
&

P’s

[(Rules

and

Procedures)].”

(emphasis in original).)

(Cty.’s

Br.

at

14,

16-17

This argument fails for the same reasons

it did when the County first raised it.

That is,

[the County’s] position that the Amended
Complaint is limited to allegations that
various [SCPD] officials failed to follow the
pre-existing harassment policies set forth in
the R&P is unduly narrow.
The Amended
Complaint’s citation to R&P provisions that
these official[s] allegedly violated does not
dilute its allegations that supervising
officials’ failure to respond to known sexual
harassment
constitutes
a
practice
sufficiently widespread to constitute a
municipal custom.
2016 Order, 2016 WL 5395846, at *9 (citations omitted).
Therefore, regardless of official rules, trainings on
sexual

harassment,

and

SCPD

members’

apparent

concern

for

Plaintiff, whether there was a custom, practice, or policy of

4

condoning or failing to address sexual harassment is a question
for the jury.
II.

Summary Judgment is Denied as to Plaintiff’s Title VII and
NYSHRL Hostile Work Environment Claim
The

Court

is

similarly

unconvinced

by

the

County’s

arguments regarding Plaintiff’s Title VII and NYSHRL hostile work
environment claim.

First, the County contends that it is not

liable for Wehr’s conduct based on Torres v. Pisano, 116 F.3d 625
(2d Cir. 1997), and Duch v. Jakubek, 588 F.3d 757 (2d Cir. 2009).
(Cty.’s Br. at 17-20.)

In the 2016 Order, this Court explained

why Duch and Torres do not bar Plaintiff’s hostile work environment
claim.

2016 Order, 2016 WL 5395846, at *13-14.

For the reasons

elaborated in the 2016 Order, whether Lieutenant Riggio and Captain
Rios responded reasonably to Plaintiff’s reports of harassment is
a question for a jury, notwithstanding Plaintiff’s requests that
they keep her reports confidential.

Id. at *11-14.

Second, the County maintains that Faragher v. City of
Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662
(1998), forecloses Plaintiff’s hostile work environment claim.
Specifically, the County contends that it should not be held liable
for Wehr’s alleged conduct since it “exercised reasonable care to
prevent and correct promptly the harassing behavior, and the
plaintiff

unreasonably

failed

to

5

take

advantage

of

[the]

preventive or corrective opportunities” it provided.

(See Cty.’s

Br. at 21-23.)
Initially, this argument fails because the Faragher
affirmative defense applies when the alleged harasser is the
plaintiff’s supervisor, not a coworker or subordinate, as Wehr was
to Plaintiff.

MacCluskey v. Univ. of Conn. Health Ctr., 707 F.

App’x 44, 47 (2d Cir. 2017) (citations omitted) (“First, the
Faragher/Ellerth
harassment.

affirmative

defense

applies

to

supervisor

The Supreme Court and this Circuit have made it clear

that there are different standards of liability for supervisor
versus co-worker harassment.”) (citations omitted). Additionally,
even if the defense did apply, “the existence of an anti-harassment
policy is not dispositive on the issue of whether the employer
exercised
behavior.”

reasonable

care

to

prevent

Id. (citation omitted).

and

correct

harassing

That is, while the County may

have provided “a reasonable avenue for complaint, it may be liable
if it knew or should have known about the harassment and failed to
take appropriate action.”
762.)

Id. at 47-48 (citing Duch, 588 F.3d at

Thus, for the reasons discussed above, it is for a jury to

decide whether SCPD members to whom Plaintiff reported Wehr’s
alleged actions “acted without reasonable care and w[ere] thus
liable for [his] conduct.”

See id. at 48.

6

III. Res Judicata Does not Bar Plaintiff’s Action
The County contends that Plaintiff’s action is barred by
res judicata since a grand jury did not indict Wehr and “determined
that the alleged crimes committed by [him] did not occur.” (Cty.’s
Br.

at

25.)

Res

judicata--or

claim

preclusion--is

facially

inapplicable, since Plaintiff could not have raised her civil
claims in the prior grand jury proceeding. See Romaka v. H&R Block
Mortg. Corp., No. 17-CV-7411, 2018 WL 4783979, at *5 (E.D.N.Y.
Sept. 30, 2018) (quoting Gordon v. First Franklin Fin. Corp., No.
15-CV-0775, 2016 WL 792412, at *6 (E.D.N.Y. Feb. 29, 2016)) (“In
New

York,

res

judicata

is

applicable

where[,

among

other

things,] . . . ‘the claims involved [in the present action] were
or could have been raised in the previous action.’”).
Assuming

the

County

meant

to

argue

that

collateral

estoppel--or issue preclusion--bars the relitigation of whether
Wehr engaged in misconduct, the argument is baseless.

(See Cty.’s

Reply, D.E. 49-2, at 10 (discussing collateral estoppel)).

For

collateral estoppel to apply, there must have been, among other
things, a full and fair opportunity to litigate the issue and a
final

decision

on

the

merits.

See

Bulovic

v.

Stop

Supermarket Co., LLC, 698 F. App’x 21, 22 (2d Cir. 2017).

&

Shop
A New

York State grand jury proceeding is not “designed to give the
parties a full and fair opportunity to litigate issues,” and a
grand jury’s decision not to indict is not a final decision on the
7

merits.

Clark v. Newbauer, 148 A.D.3d 260, 266, 47 N.Y.S.3d 314,

320 (N.Y. App. Div. 1st Dep’t 2017) (citations omitted).

As

recently explained by the First Department:
All four departments of the Appellate Division
have considered the issue of whether a grand
jury vote is entitled to collateral estoppel
effect. They have all concluded that it is
not, because grand jury action is not final
. . . .
[Additionally, i]t is not a forum
designed for the full litigation of disputed
issues. . . . [T]he process itself, with its
lack of finality, different standards of
proof, only one side presenting, no presiding
judge,
and
no
rights
of
appeal,
is
fundamentally a different procedure with a
different objective than a trial.
Id. at 266-67, 47 N.Y.S.3d at 320-21.
IV.

Summary Judgment is Granted as to Plaintiff’s Title VII and
NYSHRL Gender Discrimination Claim
The Court finds that Plaintiff was not subjected to an

adverse

employment

action,

discrimination claim fails.

and

therefore,

her

gender

See Rasko v. N.Y. City Admin. for

Children’s Servs., 734 F. App’x 52, 54 (2d Cir. 2018) (discussing
standard for Title VII discrimination claims).
Plaintiff argues that she suffered an adverse employment
action when she had to transfer to an office next door to her old
office, share it with two subordinate employees, and move office
furniture.

(Pl.’s Br., D.E. 48, at 1-2, 21-24.)

However, she

submits no evidence that the move (or having to move furniture on
a

single

occasion)

resulted

in

8

a

material

change

to

her

responsibilities, compensation, prestige, opportunities for career
advancement, benefits, or any other aspect of employment.

See

Pimentel v. City of N.Y., 74 F. App’x 146, 148 (2d Cir. 2003)
(citing

cases).

materially

Her

adverse

transfer

change

offices

the

in

of

terms

was
and

thus

not

conditions

“‘a
of

employment’ because such action[ ] ‘must be more disruptive than
a mere [in]convenience . . . .’”
Realty,

Inc.,

535

F.

App’x

Dowrich-Weeks v. Cooper Square

9,

12

(2d

Cir.

2013)

(quoting

Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008)) (upholding
dismissal of Title VII and NYSHRL discrimination claims because,
among other things, the plaintiff’s being “moved from an office to
a cubicle” was not an adverse employment action); Klein v. N.Y.
Univ., 786 F. Supp. 2d 830, 847 (S.D.N.Y. 2011) (“Undesired office
assignments are not adverse employment actions.”); Sackey v. City
of N.Y., No. 04-CV-2775, 2006 WL 337355, at *9 (S.D.N.Y. Feb. 15,
2006) (citing Galabya v. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000)) (“Being moved to a comparable, but less desirable desk
cannot by itself provide the basis for a gender discrimination
claim.”), aff’d, 293 F. App’x 89 (2d Cir. 2008).
County’s

motion

is

granted

with

respect

Therefore, the
to

Plaintiff’s

discrimination claim.2

The County also argues that “Plaintiff cannot maintain a cause
of action for discrimination as a result of Captain Rios’
oversight with respect to the Injured Employee Report.” (Cty.’s
Br. at 24.) This argument is moot, because in the 2016 Order,
2

9

CONCLUSION
For the foregoing reasons, the County’s summary judgment
motion (D.E. 45) is GRANTED IN PART and DENIED IN PART.

The

County’s motion is DENIED as to Plaintiff’s Section 1983 claim
with respect to the alleged policy of condoning or failing to
address sexual harassment, DENIED as to Plaintiff’s hostile work
environment claim under Title VII and NYSHRL, and GRANTED as to
Plaintiff’s discrimination claim under Title VII and NYSHRL.
The parties are directed to file letters within fourteen
(14) days of the date of this Memorandum and Order setting forth
their respective positions on scheduling a settlement conference
with Judge Anne Y. Shields.

Additionally, as ordered by Judge

Shields on March 16, 2018, the parties shall file their Joint
Pretrial

Order

within

Memorandum and Order.

sixty

(60)

days

of

the

date

of

(See Mar. 16, 2018 Elec. Order.)

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
25 , 2019
Central Islip, New York

the Court found that Plaintiff failed to state a claim with
respect to that allegation. 2016 Order, 2016 WL 5395846, at
*16.
10

this