Atkinson v. New York State Olympic Regional Development Authority et al

Filing 25

MEMORANDUM-DECISION and ORDER - That ORDA, Pratt and Setlock's motion to dismiss (Dkt. No. 8) is GRANTED in part as to: 1. Atkinson's 42 U.S.C. 1983 claims against ORDA and Pratt and Setlock, in their official capacities, are DISMISSED. 2. Atkinson's First Amendment claims against ORDA, Pratt and Setlock are DISMISSED. 3. Atkinson's Monell claims against ORDA, Pratt and Setlock are DISMISSED. That ORDA, Pratt and Setlock's motion to dismiss (Dkt. No. 8) is DENIED in part as to: 1. Atkinson's Title VII claims against ORDA; 2. Atkinson's Fourteenth Amendment Equal Protection claims against Pratt and Setlock in their individual capacities. 3. Atkinson's N.Y. Exec. Law 296 Discrimination and Hostil e Work Environment claims against Pratt and Setlock; 4. Atkinson's N.Y. Exec. Law 296 Retaliation claims against Pratt and Setlock. That Bulmer's motion to dismiss (Dkt. No. 16) is GRANTED in part as to. 1. Atkinson's 42 U.S.C. 1983 c laims against Bulmer in his official capacity are DISMISSED; 2. Atkinson's Monell claim against Bulmer is DISMISSED; 3. Atkinson's Fourteenth Amendment Equal Protection claim against Bulmer in his individual capacity for any ocnduct that oc curred after his resignation from ORDA is DISMISSED; 4. Atkinson's First Amendment claim against Bulmer is DISMISSED; 5. Atkinson's N.Y. Exec. Law 296 Retaliation claim against Bulmer is DISMISSED; That Bulmer's motion to dismiss (Dkt. No. 16) is DENIED in part as to: 1. Atkinson's Fourteenth Amendment Equal Protection claim against Bulmer in his individual capacity for any conduct that occurred before his resignation from ORDA; 2. Atkinson's N.Y. Exec. Law 296 Discrimin ation and Hostile Work Environment claim; 3. Atkinson's 42 U.S.C. 1983 punitive damages claim against Bulmer in his individual capacity. That the parties notify Magistrate Judge Treece in order to schedule further proceedings in accordance with this order.. Signed by Judge Gary L. Sharpe on 9/30/2011. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
MELISSA ATKINSON,
Plaintiff,

1:10-cv-994
(GLS/RFT)

v.
NEW YORK STATE OLYMPIC REGIONAL
DEVELOPMENT AUTHORITY, GAIL
SETLOCK, DAVID BULMER, and MICHAEL
PRATT,
Defendants.
____________________________________
APPEARANCES:

OF COUNSEL:

FOR THE PLAINTIFF:
Lemire, Johnson Law Firm
P.O. Box 2485
2534 Route 9
Malta, NY 12020

GREGG T. JOHNSON, ESQ.
MARK J. LEMIRE, ESQ.

FOR THE DEFENDANTS:
ORDA, Setlock, and Pratt
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
Bulmer
Towne, Ryan & Partners PC
450 New Karner Road
P.O. Box 15072

ADRIENNE J. KERWIN
Assistant Attorney General

CLAUDIA A. RYAN, ESQ.
JOHN F. MOORE, ESQ.

Albany, NY 12205
Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Melissa Atkinson commenced this action against defendants
New York State Olympic Regional Development Authority (ORDA), Gail
Setlock, David Bulmer, and Michael Pratt, asserting claims of hostile work
environment, gender-based discrimination, and retaliation pursuant to Title
VII of the Civil Rights Act of 1964,1 42 U.S.C. § 1983, and the New York
State Human Rights Law (NYSHRL).2 (Compl. ¶¶ 55-72, Dkt. No. 1.)
Pending are defendants’ motions to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). (Dkt. Nos. 8, 16.) For the reasons that follow, the motions are
granted in part and denied in part.
II. Background
A.

Factual History
Plaintiff Melissa Atkinson was hired in November 2003 by defendant

1

42 U.S.C. § 2000e, et seq.

2

N.Y. Exec. Law § 296 (McKinney 2010).

2

ORDA for the position of “Administrative Staff” at Gore Mountain.3 (Compl.
¶¶ 19-20, Dkt. No. 1.) In November 2005, Atkinson was promoted to the
position of “Kid Klub Supervisor,” which she held each year until the end of
the 2007-2008 ski season. (Id. ¶¶ 21-22.) While employed in that position,
Atkinson “was never disciplined or provided with any written performance
evaluations describing her work performance in anything other than
positive terms.” (Id. ¶ 25.)
Atkinson alleges that during the 2005-2006, 2006-2007, and 20072008 ski seasons, defendant David Bulmer, her immediate supervisor,
“sexually harass[ed] [her] by directing unwelcome and offensive genderbased behavior towards her at the workplace.” (Id. ¶¶ 26-27.) Specifically,
Atkinson alleges that Bulmer repeatedly and continuously grabbed her,
touched her breasts, and slapped her on the buttocks. (Id. ¶ 27.) Atkinson
further contends that Bulmer made sexually inappropriate comments to her
on a regular and continuous basis, including offensive and unwelcome
comments about his genitalia. (Id. ¶¶ 28-29.) According to Atkinson,
“Bulmer did not direct similar inappropriate, offensive, and unwelcome

3

ORDA is a public benefit corporation engaged in, among other things, the operation of
Gore Mountain. (See Compl. ¶ 12, Dkt. No. 1.)

3

behavior towards male employees.” (Id. ¶ 31.)
In October 2007, Atkinson made an internal complaint of harassment
and discrimination to Kurt Wissell, ORDA’s Assistant Manager at Gore
Mountain. (Id. ¶ 33.) In connection with her complaint, Atkinson was
interviewed by David McKillop and Trudy Stanton from ORDA’s Human
Resources Department. (Id. ¶ 34.) Thereafter, Atkinson claims she was
told by Mr. McKillop that ORDA was giving Bulmer the option to resign “or
face disciplinary charges for lying during an investigation and for his sexual
harassment of [her].” (Id. ¶ 35.)
In November 2007, Bulmer resigned from his employment with
ORDA. (See id. ¶ 36.) Atkinson contends that defendant Gail Setlock,
Assistant Mountain Services Manager of Gore Mountain, blamed her for
Bulmer’s resignation and “was angry at [Atkinson] for complaining of sexual
harassment.” (Id. ¶ 37.)4
In connection with his resignation, Bulmer was allegedly provided
free season passes to ski at Gore Mountain. (Id. ¶ 39.) Atkinson further
alleges that during the 2007-2008 ski season, following Bulmer’s

4

Atkinson alleges that “Setlock and Bulmer were personal friends and often spent a
significant amount of time together at Gore Mountain after ... Bulmer’s resignation.” (Compl. ¶
38, Dkt. No. 1.)

4

resignation, he frequently sought her out and “continued to sexually harass
her at her workplace.” (Id. ¶ 40.) During that season, Atkinson complained
to defendant Michael Pratt, General Manager of Gore Mountain, regarding
Bulmer’s continued sexual harassment of her. (Id. ¶ 41.) According to
Atkinson, however, Pratt refused to take any action in response to her
complaints. (Id. ¶ 42.) Instead, Atkinson alleges that Pratt told her “in
words, or in substance: ‘David Bulmer no longer works at the Mountain, but
he has a right to be there to ski. You will have to get used to it. Bulmer
isn’t going to move away.’” (Id.)
At the end of the 2007-2008 ski season, Atkinson was advised that
her employment would continue for the 2008-2009 season. (Id. ¶ 44.)
Atkinson contends, however, that on June 29, 2008, “[she] was notified that
the qualifications for the position of Kids Klub Supervisor had been
changed to include qualifications that [her] supervisors knew she did not
possess.” (Id. ¶ 45.) The next day, Atkinson contacted the ORDA Human
Resources Department and was advised that Setlock and Pratt had
instituted the change in job qualifications. (Id. at ¶ 46.) Atkinson alleges
further that during a subsequent telephone call, Setlock told her that she
should not apply for her former Supervisor position because she would not
5

be hired. (Id. ¶ 48.) Setlock also allegedly sent a June 30, 2008 email to
all snow sports staff from the 2007-2008 season, “informing them that the
position of Kids Klub Supervisor was available and that anyone interested
should apply.” (Id. ¶ 49.) Ultimately, Atkinson was not rehired for the
position of Kids Klub Supervisor, and she alleges that the individual that
replaced her did not possess all of the newly-added job qualifications. (Id.
¶ 50.)
B.

Procedural History
On July 28, 2008, Atkinson filed an administrative charge with the

Equal Employment Opportunity Commission (EEOC), complaining of acts
of unlawful discrimination and retaliation. (Id. ¶ 6.) The EEOC found
reasonable cause to believe that in terminating her employment shortly
after she lodged sexual harassment complaints, ORDA retaliated against
Atkinson in violation of Title VII. (See id. ¶ 7.) On May 21, 2010, Atkinson
received a right-to-sue letter from the EEOC and on August 17, 2010, she
commenced the present action against defendants. (Id. ¶ 8.)
III. Standard of Review
The standard of review under Federal Rules of Civil Procedure
12(b)(6) is well established and will not be repeated here. For a full
6

discussion of the standard, the court refers the parties to its previous
opinion in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218
(N.D.N.Y. 2010).
IV. Discussion
A.

Title VII
Under Title VII, it is “an unlawful employment practice for an

employer ... to discharge any individual, or otherwise to discriminate
against any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such individual’s race,
color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). Atkinson
asserts two grounds upon which she alleges that ORDA violated Title VII:
(1) hostile work environment, and (2) retaliation. (Compl. ¶¶ 55-60, Dkt.
No. 1.)
1.

Hostile Work Environment
Atkinson contends that ORDA is liable under Title VII for subjecting

her to a hostile work environment created by the discriminatory acts of
Bulmer both during his employment at Gore Mountain and following his
resignation. (Compl. ¶¶ 56-58, Dkt. No. 1.) ORDA seeks dismissal of
Atkinson’s hostile work environment claim under the theory that liability
7

cannot be imputed to it for either Bulmer’s pre or post-resignation conduct.
(Dkt. No. 8, Attach. 1 at 3-5.) The court disagrees.
A hostile work environment under Title VII is one in which the
workplace is “permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive so as to alter conditions of the
victim’s employment and create an abusive working environment.” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotation marks and citation
omitted). To establish a hostile work environment claim, a plaintiff must
show “(1) that the harassment was ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment,’ and (2) that a specific basis exists for imputing the
objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365,
374 (2d Cir. 2002) (quotation marks and citation omitted).
To satisfy the first prong of this test, the misconduct alleged must be
“severe or pervasive enough to create an objectively hostile or abusive
work environment” and the plaintiff must “subjectively perceive that
environment to be abusive.” Id. (quotation marks and citation omitted).
Atkinson alleges that between the 2005-2006 and 2007-2008 ski seasons,
Bulmer regularly engaged in unwelcome and offensive sexual behavior.
8

(Compl. ¶¶ 27-29, Dkt. No. 1.) Specifically, she alleges that Bulmer
repeatedly grabbed her, touched her breasts, slapped her buttocks and
made sexually inappropriate comments, including references to his
genitalia. (Id.)
Under the second prong, an employer is not automatically liable for
sexual harassment committed by its employee. Petrosino v. Bell Atlantic,
385 F.3d 210, 225 (2d Cir. 2004). Where the harassment is attributed to a
supervisor, however, but does not culminate in a tangible employment
action, the employer bears liability unless it successfully establishes that it
both “exercised reasonable care to prevent and correct promptly any
sexually harassing behavior” and that “the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.” Id. (quotation marks
and citation omitted).
The attribution of pre-resignation harassment to Bulmer, Atkinson’s
immediate supervisor, is sufficient at this stage to survive ORDA’s motion
to dismiss. The court, therefore, need not address the issue of ORDA’s
potential liability for failing to remedy Atkinson’s complaints of harassment

9

by Bulmer following his resignation.5 Because Atkinson has met the
minimum requirements of showing objective and subjective hostility and
sufficient grounds upon which to impute to ORDA Bulmer’s conduct,
ORDA’s motion to dismiss is denied as to Atkinson’s Title VII hostile work
environment claim.
2.

Retaliation
Atkinson further alleges that ORDA is liable under Title VII for

retaliating against her in response to her complaints of sexual harassment.
(Compl. ¶¶ 58-60, Dkt. No. 1.) ORDA seeks to dismiss Atkinson’s
retaliation claim on the grounds that she failed to adequately allege the
existence of protected activity and an adverse employment action. (Dkt.
No. 8, Attach. 1 at 5-6.) The court disagrees with ORDA on both points.
Title VII provides that “[i]t shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . . because [that
employee] has made a charge, testified, assisted, or participated in any
5

It should be noted, however, that the Second Circuit has reserved judgment on the
question of employer liability for the harassment of an employee by a non-employee, but has
held that if it does in fact exist, it is limited to instances in which the employer “provided no
reasonable avenue of complaint or knew of the harassment but did nothing about it.” Quinn v.
Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998), abrogated in part on other grounds
by, National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). The Southern District
has answered the question in the affirmative and applied the test suggested in Quinn. See
Lopes v. Caffe Centrale LLC, 548 F. Supp. 2d 47, 53 (S.D.N.Y. 2008); Heskin v. Insite
Advertising,Inc., No. 03-cv-2598, 2005 WL 407646, at *20-21 (S.D.N.Y. Feb. 22, 2005).

10

manner in an investigation, proceeding or hearing.” 42 U.S.C. § 2000e3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff
must show: “(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 the protected activity and the adverse
employment action.” McMenemy v. City of Rochester, 241 F.3d 279, 282
(2d Cir. 2001). The plaintiff’s burden at this stage is “minimal.” Woodman
v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005).
For a plaintiff’s actions to constitute a protected activity, she must
have had a “good faith, reasonable belief that the underlying challenged
actions of the employer violated the law.” McMenemy v. City of Rochester,
241 F.3d 279, 283 (2d Cir. 2001). An adverse employment action is a
“materially adverse change in the terms and conditions of employment.”
Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006) (quotation
marks and citation omitted).
Atkinson alleges that following her October 2007 complaint of sexual
harassment, Pratt and Setlock changed the job requirements for her
position of Kids Klub Supervisor so as to render her unqualified for that
role. (Compl. ¶¶ 51-54, Dkt. No. 1.) Atkinson further contends that Setlock
11

explicitly told her not to re-apply for the position of Kids Klub Supervisor
because she would not be hired. (Id. ¶ 48.) Both the change in job
qualifications and Setlock’s discouragement from re-applying for the
position, according to Atkinson, were retaliatory measures taken in
response to her sexual harassment complaint. (Id. ¶¶ 51-54.)
In alleging that she was constructively forced from her position in
retaliation for submitting a good faith complaint of sexual harassment,
Atkinson has met her burden at this juncture. ORDA’s motion to dismiss
Atkinson’s Title VII retaliation claim is therefore denied.
B.

42 U.S.C. § 1983
Section 1983 provides a “private right of action against any person

who, acting under color of state law, causes another person to be
subjected to the deprivation” of constitutional rights. Blyden v. Mancusi,
186 F.3d 252, 264 (2d Cir. 1999). A valid § 1983 claim requires a showing
of personal involvement by the defendant in the alleged constitutional
deprivation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Atkinson
alleges that all defendants are liable under § 1983 for violating her rights
under the First and Fourteenth Amendments. She also alleges a

12

constitutional violation under Monell.6 (Compl. ¶¶ 62-65, Dkt. No. 1.)
1.

Eleventh Amendment Immunity
ORDA, with Pratt and Setlock in their official capacities, argue that

Atkinson’s § 1983 claims should be barred by the Eleventh Amendment.
(Dkt. No. 8, Attach. 1 at 6-7.) The Eleventh Amendment bars suit in federal
court against a state “or one of its agencies by its own citizens in the
absence of the state’s explicit consent to be sued or Congress’ unequivocal
abrogation of immunity.” Turner v. Olympic Reg’l Dev. Auth., 89 F. Supp.
2d 241, 246 (N.D.N.Y. 2000). ORDA is a state entity for purposes of
Eleventh Amendment analysis. Id. ORDA is therefore immune from
Atkinson’s § 1983 claim, as are Pratt, Setlock and Bulmer—though he did
not raise the issue in his papers—in their official capacities. Defendants’
motion to dismiss Atkinson’s § 1983 claim is therefore granted as to ORDA
as well as Pratt, Setlock and Bulmer in their official capacities.
2.

Monell
Atkinson further alleges that by failing to properly respond to her

complaints of discrimination and by retaliating against her, defendants
“condoned and/or acquiesced” in the discrimination, “thereby establishing a
6

Monell v. Dept. of Soc. Servs. of N.Y., 436 U.S. 658 (1978).

13

de facto unconstitutional municipal pattern, practice or policy” pursuant to
Monell v. Dep’t. of Soc. Serv. of N.Y., 436 U.S. 658 (1978). (Compl. ¶ 64,
Dkt. No. 1.) While Monell provides a basis for municipal liability, it does not
affect the immunity enjoyed by states under the Eleventh Amendment. Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989) (citation omitted).
Because ORDA is a state entity, not a municipality, any Monell claim
against it must fail. Additionally, because Monell liability does not apply to
individuals, Atkinson’s claim must also fail as to the remaining defendants.
Atkinson’s claims of municipal liability under Monell are therefore
dismissed.
3.

Equal Protection
The Equal Protection clause protects individuals from sex

discrimination in public employment, including sex discrimination in the
form of sexual harassment. See Annis v. Cnty. of Westchester, 36 F.3d
251, 254 (2d Cir. 1994) (citation omitted). Atkinson alleges liability on
behalf of all defendants under the Equal Protection clause of the
Fourteenth Amendment for, under the color of state law, violating her
constitutional rights and being “deliberately indifferent to [those]
constitutional rights.” (Compl. ¶ 62, Dkt. No. 1.)
14

a.

Bulmer

i.

Post-Resignation Conduct
Bulmer argues unopposed that Atkinson’s Equal Protection claim

should be dismissed insofar as it concerns conduct or employment actions
taken after his resignation from ORDA. (See Dkt. No. 16, Attach. 2 at 4-5.)
The court agrees.
To succeed on a claim under § 1983, a plaintiff must demonstrate
that “the challenged conduct was attributable at least in part to a person
who was acting under color of state law.” Snider v. Dylag, 188 F.3d 51, 54
(2d Cir. 1999). Thus, Bulmer’s motion to dismiss Atkinson’s Equal
Protection claim is granted as to any conduct that occurred following his
resignation from ORDA.7
ii.

Pre-Resignation Conduct
Bulmer next seeks to dismiss Atkinson’s Equal Protection claim as it

relates to his conduct while employed by ORDA. (See Dkt. No.16, Attach.
2 at 5-6; Dkt. No. 21 at 2-6.) He argues primarily that the alleged
harassment does not rise to the level of sex discrimination under § 1983.
7

Bulmer also moves to dismiss Atkinson’s Monell and First Amendment claims to the
extent that they relate to his post-employment conduct. (See Dkt. No. 16, Attach. 2 at 4-10.)
The court need not address these grounds because Atkinson’s Monell and First Amendment
claims are dismissed as to all defendants. See supra Part IV.B.2; infra Part IV.B.4.

15

(See Dkt. No. 21 at 2-6.) The court disagrees.
While the Equal Protection clause protects individuals from sex
discrimination in public employment, the Second Circuit has made clear
that sexual harassment does not categorically equate to sex discrimination
under § 1983. Annis v. Cnty. of Westchester, 36 F.3d 251, 254 (2d Cir.
1994) (citation omitted). To rise to the level of a constitutional tort, sexual
harassment must “transcend[] coarse, hostile and boorish behavior.” Id.
(citing Gierlinger v. N.Y. State Police, 15 F.3d 32, 34 (2d Cir. 1994)).
Atkinson alleges that from the 2005-2006 season until November
2007, Bulmer, as a state actor, repeatedly grabbed her, touched her
breasts and slapped her buttocks. (Compl. ¶ 27, Dkt. No. 1.) She also
contends that Bulmer regularly directed offensive sexual gestures towards
her and continuously made inappropriate sexual remarks to her, including
comments about his genitalia. (Id. ¶¶ 28-30.)
While Bulmer cites case law in which actions similar to those alleged
here were ultimately deemed insufficient to support a finding of sex
discrimination,8 Atkinson has pled facts sufficient to support a plausible
Equal Protection claim. Bulmer’s motion to dismiss Atkinson’s Equal

8

See Dkt. No. 21 at 2-6.

16

Protection claim is therefore denied as to the actions taken by Bulmer while
he was employed by ORDA.
b.

Pratt and Setlock
Atkinson also alleges that Pratt and Setlock violated her rights under

the Equal Protection clause by, inter alia, failing to remedy her complaints
of Bulmer’s post-resignation sexual harassment. (See Dkt. No. 10 at 12;
Compl. ¶ 62, Dkt. No. 1.) Pratt and Setlock seek to dismiss Atkinson’s
Equal protection claim primarily on the grounds that supervisor liability
cannot attach because Bulmer was a private citizen at the time of his
alleged harassment. (Dkt. No. 8, Attach. 1 at 8.) The court disagrees that
dismissal is warranted at this juncture.
While the doctrine of respondeat superior cannot be used to establish
liability under § 1983 in light of the requirement of personal involvement, a
supervisor may be held personally liable if he “(1) directly participated in the
infraction, (2) failed to remedy the wrong after learning of the violation, (3)
created a policy or custom under which unconstitutional practices occurred
or allowed such a policy or custom to continue, or (4) was grossly negligent
in managing subordinates who caused the unlawful condition or event.”
Abbas v. Senkowski, No. 03-cv-476, 2005 WL 2179426, at *2 (N.D.N.Y.
17

Sept. 9, 2005) (citing Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999);
Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
As noted above, Atkinson has alleged facts sufficient to state a
plausible Equal Protection claim based on Bulmer’s purported preresignation harassment. Atkinson alleges that following Bulmer’s
resignation, he frequently returned to Gore Mountain and persisted in the
same behavior that prompted her earlier complaints. (Compl. ¶ 40, Dkt.
No. 1.) Atkinson further contends that Pratt and Setlock were made aware
of Bulmer’s continued harassment and refused to take corrective action.
(Id. ¶¶ 41-42.) Pratt, Atkinson contends, responded to her complaints by
telling her “in words, or in substance,” that she would “have to get used to
it.” (Id. ¶ 42).
As discussed above, the question of whether an employer is liable
for the discriminatory acts of a non-employee is an open one in this Circuit.
Accordingly, the motion to dismiss Atkinson’s Equal Protection claims as to
Pratt and Setlock is denied.
4.

First Amendment
Atkinson next asserts claims against all defendants alleging that

each, “under color of state law, retaliated against [her] in violation of [her]
18

First Amendment [r]ights.” (Compl. ¶ 27, Dkt. No. 1.) Defendants seek to
dismiss Atkinson’s First Amendment claim, arguing that it is deficient in all
respects. (Dkt. No. 8, Attach. 1 at 9-10; Dkt. No. 16, Attach. 2 at 6-8.) The
court agrees with defendants that Atkinson has failed to plead a plausible
First Amendment retaliation claim.
To state a claim for First Amendment retaliation pursuant to § 1983, a
plaintiff must show that “(1) his speech was constitutionally protected, (2)
he suffered an adverse employment decision, and (3) a causal connection
exists between his speech and the adverse employment determination
against him, so that it can be said that his speech was a motivating factor in
the determination.” Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).
While defendants argue that Atkinson’s pleadings are deficient as to
each prong, the court need only address the issue of protected speech. To
engage in constitutionally protected speech, a plaintiff must have spoken
as a citizen on a matter of “political, social, or other concern to the
community.” Id. (quotation marks and citation omitted). Speech relating to
a “purely private matter, such as an employee’s dissatisfaction with the
conditions of [her] employment, does not pertain to a matter of public
concern,” and therefore does not implicate the First Amendment. Lewis v.
19

Cowen, 165 F.3d 154, 164 (2d Cir. 1999). Complaints of gender-based
employment discrimination generally fail to qualify as protected speech
because such complaints are typically personal in nature and relate solely
to the employee’s unique employment situation as opposed to systemic
discrimination. See Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143
(2d Cir. 1993) (internal citations omitted). Whether speech does implicate
the First Amendment is a question of law for the court to decide. Id. at 163
(citation omitted).
Here, Atkinson alleges that she was retaliated against for her
“complaints of discrimination and harassment.” (Compl. ¶ 54, Dkt. No. 1.)
As Atkinson’s complaint makes clear, however, those complaints were
personal in nature and related to her own situation. Indeed, Atkinson’s
complaint is devoid of any allegations or facts suggesting that she was
complaining of any form of pervasive systemic sexual harassment, or that
her internal complaints were part of an overall effort to correct allegedly
unlawful practices or bring them to public attention.
Thus, Atkinson has failed to state a claim for First Amendment
retaliation, and that claim is dismissed as to all defendants.
C.

New York Executive Law § 296
20

Section 296 of the New York State Human Rights Law (NYSHRL)
makes it unlawful for an employer to discriminate on the basis of, inter alia,
sex. N.Y. Exec. Law § 296(1)(a) (McKinney 2010). It also makes it
unlawful for any employer to “discriminate against any person because he
or she has opposed any practices forbidden” under § 296. Id. at (1)(e).
Atkinson alleges that all defendants are liable under § 296 for gender
discrimination, creating a hostile work environment and retaliation. (Compl.
¶¶ 66-72, Dkt. No. 1.) As a preliminary matter, the court notes that ORDA
as well as Pratt, Setlock and Bulmer in their professional capacities, enjoy
Eleventh Amendment immunity from suit in federal court. Atkinson’s § 296
claims as to those defendants are therefore dismissed.
1.

Hostile Work Environment

a.

Pratt and Setlock
Pratt and Setlock seek to dismiss Atkinson’s § 296 hostile work

environment claim on grounds identical to those raised by ORDA in relation
to Atkinson’s Title VII claim; principally that Bulmer’s actions cannot be
attributed to them. (Dkt. No. 8, Attach.1 at 3-5, 12.)
Section 296 claims are “analytically identical to claims brought under

21

Title VII.”9 Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d Cir. 1997). In light
of this common analysis, the arguments that failed for ORDA likewise fails
for Pratt and Setlock.10 Because Pratt and Setlock are individuals as
opposed to traditional employers, however, the dispositive question
therefore becomes whether they are individually liable under § 296.
Unlike Title VII, the NYSHRL provides for individual liability in certain
circumstances. First, an individual employee may be personally liable if he
is shown to “have any ownership interest or any power to do more than
carry out personnel decisions made by others.” Patrowich v. Chem. Bank,
63 N.Y.2d 541, 542 (1984). Second, individual liability attaches where “any
person,” inter alia, aids or abets any discriminatory practice forbidden under
§ 296. N.Y. Exec. Law § 296(6).
Atkinson alleges that Pratt and Bulmer both changed the
qualifications for the position of Kids Klub Supervisor. (Compl. ¶¶ 45-46,
Dkt. No. 1.) She further alleges that she complained of Bulmer’s postemployment harassment and that Pratt and Setlock refused to take
remedial measures. (Compl. ¶¶ 41-42, Dkt. No. 1; Dkt. No. 8 at 12.)
9

See supra Part IV.A.1-2. for a full discussion of the Title VII hostile work environment
and retaliation analysis.
10

See supra Part IV.A.1.

22

Accordingly, Atkinson has pled facts sufficient to support a plausible
claim for individual liability under § 296 against Pratt and Setlock. Pratt and
Setlock’s motion to dismiss Atkinson’s § 296 claim for discrimination and
hostile work environment is therefore denied.
b.

Bulmer
Atkinson asserts that Bulmer is liable for gender discrimination and

the creation of a hostile work environment as an aider and abettor under §
296(6) for his actions both during and after his employment with ORDA.
(Dkt. No. 19 at 4-6.) Bulmer seeks dismissal of Atkinson’s § 296 claim on
the theory that § 296 liability is absent as to the other defendants, and he
cannot be considered an aider or abettor to his own actions. (Dkt. No. 16,
Attach. 2 at 10-12.) The court disagrees that dismissal is warranted at this
juncture.
To be liable under § 296(6), a plaintiff must show that “the individual
aided or abetted a primary violation of the NYHRL committed by another
employee or the business itself.” Bennett v. Progressive Corp., 225 F.
Supp. 2d 190, 213 (N.D.N.Y. 2002) (quotation marks and citation omitted)
(italics in original).
Because Atkinson’s § 296 hostile work environment claim as against
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Pratt and Setlock persists, Atkinson has pled facts sufficient to support a
plausible claim that Bulmer’s alleged behavior constituted aiding and
abetting pursuant to § 296(6). Bulmer’s motion to dismiss Atkinson’s
discrimination and hostile work environment claim under § 296 is therefore
denied.
2.

Retaliation

a.

Pratt & Setlock
Atkinson alleges that Pratt and Setlock also violated § 296 by

“retaliating against [her] in response to [her] having engaged in protected
activity.” (Compl. ¶ 71, Dkt. No. 1.) As discussed above in Parts IV.A.2
and IV.C.1.a, respectively, Atkinson has alleged facts sufficient to support a
claim of retaliation and to impute individual liability under § 296 on Pratt
and Setlock. The motion to dismiss Atkinson’s § 296 retaliation claim as
against Pratt and Setlock is therefore denied.
b.

Bulmer
Atkinson also alleges that Bulmer is liable under § 296 for aiding and

abetting Pratt and Setlock’s retaliatory actions against her. (Dkt. No. 19 at
6; Compl. ¶ 71, Dkt. No. 1.) Despite her allegations that Bulmer harassed
her both during and following his employment with ORDA, (Compl. ¶¶ 2624

30, 40, Dkt. No. 1.), Atkinson alleges no facts which suggest that Bulmer
aided, abetted, or in any way influenced Pratt and Setlock’s allegedly
discriminatory employment actions. Bulmer’s motion to dismiss Atkinson’s
§ 296 retaliation claim is therefore granted and Atkinson’s claim as against
Bulmer is dismissed.
D.

Punitive Damages
Atkinson seeks, inter alia, punitive damages against defendants.

(Compl. Prayer for Relief, Dkt. No. 1.) Bulmer seeks to dismiss this claim
for punitive damages as against him in his professional capacity under the
theory that such damages are not available against municipal officers.
(Dkt. No. 16, Attach. 2 at 13-14.)
As noted above, ORDA is a state entity, not a municipality. This point
is moot however, because Atkinson’s claims against Bulmer in his official
capacity have been dismissed.
Bulmer further seeks to dismiss Atkinson’s claim for punitive
damages as against him in his individual capacity under § 1983 for lack of
evil motive or intent. (Dkt. No. 16, Attach. 2 at 14.) In an action under §
1983, a jury may assess punitive damages when the “defendant’s conduct
is shown to be motivated by evil motive or intent, or when it involves
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reckless or callous indifference to the federally protected rights of others.”
Smith v. Wade, 461 U.S. 30, 56 (1983). In alleging that Bulmer repeatedly
and continuously subjected her to sexual gestures, comments and
touching, Atkinson has pled facts sufficient to support a plausible claim for
punitive damages. Accordingly, Bulmer’s motion to dismiss Atkinson’s
punitive damage claim as against him in his individual capacity under §
1983 is denied.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that ORDA, Pratt and Setlock’s motion to dismiss (Dkt.
No. 8) is GRANTED in part as to:
1. Atkinson’s 42 U.S.C. § 1983 claims against ORDA and Pratt
and Setlock, in their official capacities, are DISMISSED;
2. Atkinson’s First Amendment claims against ORDA, Pratt and
Setlock are DISMISSED;
3. Atkinson’s Monell claims against ORDA, Pratt and Setlock
are DISMISSED; and it is further
ORDERED that ORDA, Pratt and Setlock’s motion to dismiss (Dkt.
No. 8) is DENIED in part as to:
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1. Atkinson’s Title VII claims against ORDA;
2. Atkinson’s Fourteenth Amendment Equal Protection claims
against Pratt and Setlock in their individual capacities;
3. Atkinson’s N.Y. Exec. Law § 296 Discrimination and Hostile
Work Environment claims against Pratt and Setlock;
4. Atkinson’s N.Y. Exec. Law § 296 Retaliation claims against
Pratt and Setlock; and it is further
ORDERED that Bulmer’s motion to dismiss (Dkt. No. 16) is
GRANTED in part as to:
1. Atkinson’s 42 U.S.C. § 1983 claims against Bulmer in his
official capacity are DISMISSED;
2. Atkinson’s Monell claim against Bulmer is DISMISSED;
3. Atkinson’s Fourteenth Amendment Equal Protection claim
against Bulmer in his individual capacity for any conduct that
occurred after his resignation from ORDA is DISMISSED;
4. Atkinson’s First Amendment claim against Bulmer is
DISMISSED;
5. Atkinson’s N.Y. Exec. Law § 296 Retaliation claim against
Bulmer is DISMISSED; and it is further
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ORDERED that Bulmer’s motion to dismiss (Dkt. No. 16) is DENIED
in part as to:
1. Atkinson’s Fourteenth Amendment Equal Protection claim
against Bulmer in his individual capacity for any conduct that
occurred before his resignation from ORDA;
2. Atkinson’s N.Y. Exec. Law § 296 Discrimination and Hostile
Work Environment claim;
3. Atkinson’s 42 U.S.C. § 1983 punitive damages claim against
Bulmer in his individual capacity; and it is further
ORDERED that the parties notify Magistrate Judge Treece in order to
schedule further proceedings in accordance with this order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 30, 2011
Albany, New York

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