Taedger v. New York State et al

Filing 17

DECISION & ORDER granting in part and denying in part # 11 Defendants' Motion to Dismiss for Failure to State a Claim as set forth in this decision and order; and this case is referred back to Magistrate Judge Treece for a Rule 16 conference and the setting of pretrial scheduling deadlines. Signed by Judge Glenn T. Suddaby on 10/15/13. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
SUSAN T. TAEDGER,
Plaintiff,

1:12-CV-0549
(GTS/RFT)

v.
NEW YORK STATE; NEW YORK STATE DEP’T
OF CORR. SERVS.; BRIAN FISCHER, in his capacity
as Comm’r of New York State Dep’t of Corr. Servs.;
PETER HORAN, individually and in his capacity as
Senior Counselor at Downstate Corr. Facility; and
DOWNSTATE CORR. FACILITY,1
Defendants.
___________________________________________
APPEARANCES:

OF COUNSEL:

RANNI LAW FIRM
Counsel for Plaintiff
148 North Main Street
Florida, New York 10921

JOSEPH J. RANNI, ESQ.

HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224-0341

CHRISTOPHER W. HALL, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination action filed by Susan
Taedger (“Plaintiff”) against the five above-captioned entities and individuals (“Defendants”), is
a motion to dismiss for failure to state a claim filed by Defendants. (Dkt. No. 11.) For the
reasons set forth below, Defendants’ motion is granted in part and denied in part.

1

Although the caption of the Complaint identified Horan as a “Commissioner” of
Downstate Correctional Facility, the body of the Complaint repeatedly identifies him as a
“Senior Counselor” at that facility. (See, e.g., Dkt. No. 1, at ¶¶ 4, 11.) As a result, the Clerk of
the Court is directed to amend the docket sheet accordingly.

I.

RELEVANT BACKGROUND
A.

Plaintiff’s Claims

Generally, Plaintiff's Complaint alleges as follows. Between early 2010 and late 2011,
while she worked as a corrections counselor at Downstate Correctional Facility (“C.F.”), she was
sexually harassed by her direct supervisor, Defendant Peter Horan. (See generally Dkt. No. 1
[Plf.’s Compl.].) When she spurned his unwelcome and offensive sexual advances, she was
subjected to “unwarranted criticism, name calling, humiliation, intimidation, ridicule, mockery,
insults, interference with work assignments and performance, excessive and oppressive
monitoring, heightened scrutiny, and pretextual verbal and/or written warnings.” (Id.) For
example, she was unjustifiably denied assistance with an unreasonably burdensome workload;
she was unjustifiably denied leave and/or overtime while other similarly situated employees
were granted those things; her complaint of a subordinate’s misconduct was ignored; and her
work product was unjustifiably corrected. (Id.)
Similarly, after she complained to her supervisors of the harassing and discriminatory
conduct to which she was being subjected, no good-faith investigation was conducted on her
behalf; her prior performance evaluations were improperly corrected, altered, deleted, and/or
tampered with; she had her personal possessions taken from her office, and worked product
changed in her office, while she was not present; and she was transferred to another building to
dissuade her from making additional complaints. (Id.) Subsequently, she was locked out of the
facility due to a purported “administrative reason,” was ordered by the Head Personnel Clerk to
undergo a mental health evaluation, and was placed on involuntary leave. (Id.) In November,
she returned to work, though she remains subject to a termination proceeding. (Id.)

2

Based on these factual allegations, Plaintiff’s Complaint asserts the following nine claims
against all Defendants: (1) a claim of discrimination based on gender under 42 U.S.C. §2000e et
seq. (“Title VII”); (2) a claim of hostile work environment based on gender under Title VII; (3) a
claim of retaliation based on complaints of discrimination under Title VII; (4) a claim of
discrimination based on gender under the Human Rights Law of the State of New York § 296, et
seq. (“NYHRL”); (5) a claim of retaliation based on complaints of discrimination under the
NYHRL; (6) a claim of hostile work environment based on gender under the NYHRL; (7) a
claim of denial of equal protection through gender discrimination in violation of 42 U.S.C. §
1983 (“Section 1983”); (8) a claim of negligent infliction of emotional distress under New York
State tort law; and (9) a claim of intentional infliction of emotional distress under New York
State tort law. (Id.) Familiarity with the particular factual allegations supporting these claims in
Plaintiff’s Complaint is assumed in this Decision and Order, which is intended primarily for the
review of the parties. (Id.)
B.

Parties’ Briefing on Defendants’ Motion

Generally, in support of their motion dismiss, Defendants assert the following nine
arguments: (1) Plaintiff’s three Title VII claims against Defendants Fischer and Horan in their
individual capacities should be dismissed, because individuals are not liable under Title VII; (2)
Plaintiff’s three NYHRL claims, Section 1983 claim, and two tort claims against Defendants
New York State, New York State Department of Correctional Services (“DOCS”), Downstate
C.F., and Fischer should be dismissed as barred by the doctrine of sovereign immunity embodied
in the Eleventh Amendment; (3) alternatively, Plaintiff’s two tort claims against Defendants New
York State, DOCS, Downstate C.F., and Fischer for money damages should be dismissed

3

because those claims must be brought in the New York State Court of Claims; (4) Plaintiff’s
Section 1983 claim against Defendant Horan should be dismissed for failure to allege facts
plausibly suggesting that he was personally involved in the equal protection violation alleged;
(5) Plaintiff’s two tort claims against Defendant Fisher and Defendant Horan in his individual
capacity should be dismissed because New York Correction Law § 24 immunizes them from
such claims; (6) alternatively, Plaintiff’s claim of intentional infliction of emotional distress
against Defendant Horan in his individual capacity should be dismissed because (a) it is barred
by the claim’s one-year limitations period and (b) it fails to allege facts plausibly suggesting
conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community; (7) similarly, Plaintiff’s claim of negligent infliction of emotional distress against
Defendant Horan in his individual capacity should be dismissed because it fails to allege facts
plausibly suggesting that he unreasonably endangered Plaintiff’s physical safety or caused her to
fear for her physical safety; (8) in the alternative, Plaintiff’s three Title VII claims and three
NYHRL claims against all Defendants should be dismissed to the extent they are based on events
occurring more than 300 days before April 7, 2011 (which was the date on which she filed a
charge with the Equal Employment Opportunity Commission); and (9) Plaintiff’s Title VII and
NYHRL claims of gender discrimination should be dismissed against all Defendants because
those claims fail to allege facts plausibly suggesting that Plaintiff experienced an adverse
employment action (such as the loss of pay, sick time, vacation time, or a decrease in the terms,
conditions or privileges of employment). (See generally Dkt. No. 11, Attach. 1 [Defs.’ Memo.
of Law].)

4

Generally, in response, Plaintiff asserts the following six arguments: (1) Plaintiff
consents to the dismissal of her three Title VII claims against Defendants Horan and Fischer to
the extent those two Defendants are sued in their individual capacities; (2) while the Eleventh
Amendment (and doctrine of sovereign immunity embodied in it) bars some claims against states
(and state employees acting in the official capacities), it does not bar claims brought under
statutes enacted to enforce the substantive provisions of the Fourteenth Amendment, such as
Title VII; (3) the protection afforded by N.Y. Correction Law § 24 is not absolute and does not
extend to actions taken by Defendant Horan in his individual capacity such as sexual harassment,
continued discrimination, and retaliation; (4) Plaintiff has stated a claim of intentional infliction
of emotional distress against Defendant Horan, and a claim of negligent infliction of emotional
distress against him, because she has allege facts plausibly suggesting reactions such as mental
anguish, humiliation, horror, grief and shame; (5) while Plaintiff’s three Title VII claims do not
fall within the 300-day limitations period, her three NYHRL claims are not governed by that
limitations period but a three-year limitations period under N.Y. C.P.L.R. § 214 (even that
portion of those claims based on events occurring more than 300 days before April 7, 2011); and
(6) Plaintiff has stated a claim for gender discrimination under Title VII and NYHRL because
she has alleged facts plausibly suggesting that Plaintiff experienced an adverse employment
action through suspension, duty reassignments, loss of days off, denial of leave, denial of
overtime, tampering with work product, falsification of her signature, and being locked out of the
facility without just cause. (See generally Dkt. No. 13 [Plf.’s Reply Memo. of Law].)
Generally, in their reply, Defendants assert the following six arguments: (1) Plaintiff has
consented (either expressly or implicitly) to Defendants’ arguments (a) Plaintiff three Title VII

5

claims against Defendants Horan and Fischer should be dismissed because individuals are not
liable under Title VII, and (b) Plaintiff’s NYHRL claims, Section 1983 claim, and two tort
claims against Defendants New York State, DOCS, Downstate C.F., and Fischer should be
dismissed under the doctrine of sovereign immunity embodied in the Eleventh Amendment; (2)
by arguing that only Defendant Horan’s conduct was not protected by N.Y. Correction Law § 24,
Plaintiff has implicitly conceded that her two tort claims against Defendant Fischer should be
dismissed; (3) in her conclusory paragraph on the subject, Plaintiff has failed to (a) identify what
particular factual allegations in her Complaint satisfy the tough standard of plausibly suggesting
conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community (necessary to state a claim of intentional infliction of emotional distress), and (b)
explain why the claim is not barred by the one-year limitations period; (4) in her conclusory
paragraph on the subject, Plaintiff has failed to identify what particular factual allegations in her
Complaint plausibly suggest that Defendant Horan unreasonably endangered Plaintiff’s physical
safety or caused her to fear for her physical safety (necessary to state a claim of negligent
infliction of emotional distress); (5) while Plaintiff argues that her three NYHRL claims are in
no way barred by the 300-day limitations period referenced by Defendants, she expressly
concedes that her three Title VII claims are barred to the extent they are based on events
occurring in January and February of 2010; and (6) none of the employment conditions
identified by Plaintiff rise to the level of “adverse employment actions” for purposes of gender
discrimination claims under Title VII and the NYHRL. (See generally Dkt. No. 14 [Defs.’ Reply
Memo. of Law].)

6

II.

RELEVANT LEGAL STANDARDS
A.

Legal Standard Governing Motions to Dismiss for Failure to State a Claim

For the sake of brevity, the Court will not recite, in this Memorandum-Decision and
Order, the well-known legal standard governing dismissals for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6), but will direct the reader to the Court’s decision in Wade v. Tiffin
Motorhomes, Inc., 686 F. Supp.2d 174, 182-84 (N.D.N.Y. 2009) (Suddaby, J.), which accurately
recites that standard.
B.

Legal Standard Governing Defendants’ Challenge to Plaintiff’s Claims

Because the parties to this action have demonstrated, in their memoranda of law, an
accurate understanding the legal standards governing Plaintiff’s claims in this action, the Court
will not recite, in their entirety, those legal standard sin this Decision and Order, which (again) is
intended primarily for the review of the parties. (Dkt. No. 11, Attach. 1 [Defs.’ Memo. of Law];
Dkt. No. 13 [Plf.’s Opp’n Memo. of Law]; Dkt. No. 14 [Defs.’ Reply Memo. of Law].)
III.

ANALYSIS
A.

Plaintiff’s Three Title VII Claims

As stated above in Part I.B. of this Decision and Order, Defendants assert the following
three arguments, in pertinent part: (1) Plaintiff’s three Title VII claims against Defendants
Fischer and Horan in their individual capacities should be dismissed because individuals are not
liable under Title VII; (2) Plaintiff’s three Title VII claims against all Defendants should be
dismissed to the extent they are based on events occurring more than 300 days before April 7,
2011; and (3) in the alternative, Plaintiff’s Title VII claim of discrimination based on gender
should be dismissed against all Defendants because it fails to allege facts plausibly suggesting
that she experienced an adverse employment action.
7

1.

Lack of Individual Liability

After carefully considering the matter, the Court finds that Plaintiff’s three Title VII
claims against Defendant Horan in his individual capacity should be dismissed for the reasons
stated in Defendants’ memoranda of law. See, supra, Part I.B. of this Decision and Order. The
Court finds that, while any Title VII claims asserted by Plaintiff against Defendant Fischer in his
individual capacity would be dismissed for the same reason, the Court does not liberally construe
Plaintiff’s Complaint as asserting any such Title VII claims. (Dkt. No. 1, at 1 [stating, in caption
of Complaint, that Plf.’s first three claims are asserted against Fisher “in his capacity as
Commissioner of New York State Department of Correctional Services]; Dkt. No. 13, at 5
[attaching page “5” of Plf.’s Opp’n Memo. of Law, stating that Plf.’s first three claims are
asserted against Fisher “in his capacity as Commissioner of New York State Department of
Correctional Services,” unlike the remaining six claims, which are asserted against Horan
“individually”].)
The Court would add only one point. In this District, when a non-movant fails to oppose
a legal argument asserted by a movant in support of a motion, the movant's burden with regard to
that argument has been lightened such that, in order to succeed on that argument, the movant
need only show that the argument possesses facial merit, which has appropriately been
characterized as a “modest” burden. See N.D .N.Y. L.R. 7.1(b)(3) (“Where a properly filed
motion is unopposed and the Court determines that the moving party has met its burden to
demonstrate entitlement to the relief requested therein . . . .”); Rusyniak v. Gensini, 07-CV-0279,
2009 WL 3672105, at *1, n. 1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); EsteGreen v. Astrue, 09-CV-0722, 2009 WL 2473509, at *2 & n. 3 (N.D.N.Y. Aug .7, 2009)
(Suddaby, J.) (collecting cases). Here, Defendants are correct that Plaintiff has failed to oppose,
8

if not expressly consented to, the above-described argument by Defendants.2 At the very least,
Defendants have met the lightened burden that was created by Plaintiffs' failure to respond.
For these reasons, Plaintiff’s three Title VII claims against Defendant Fischer in his
individual capacity is dismissed.
2.

Statute of Limitations

After carefully considering the matter, the Court finds that Plaintiff’s Title VII
discrimination claim and Title VII retaliation claim against all Defendants should be dismissed
to the extent they are based on events occurring more than 300 days before April 7, 2011, for the
reasons stated in Defendants’ memoranda of law. See, supra, Part I.B. of this Decision and
Order. Defendants are correct that Plaintiff has expressly conceded this argument. At the very
least, Defendants have met their lightened burden with regard to this argument.
However, the Court must render a different conclusion with regard to Plaintiff’s Title VII
hostile-work-environment claim against all Defendants, given the Supreme Court’s holding in
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (holding that employee could
recover on hostile work environment claim for acts occurring more than 300 days before charge
was filed with EEOC, as long as acts were part of same hostile work environment and at least
one occurred within 300-day period ).
For these reasons, to the extent Plaintiff’s Title VII discrimination claim against
Defendants and her Title VII retaliation claim against Defendants are based on events occurring

2

For example, in her Opposition Memorandum of Law, Plaintiff argues that her
three VII claims are asserted against Defendant Horan in only his official capacity. (Dkt. No. 13,
at 5 [attaching page “5” of Plf.’s Opp’n Memo. of Law].) The Court notes that this fact is not
apparent from the face of Plaintiff’s Complaint, which names Defendant Horan in his individual
and official capacities in its caption and appears to assert its First, Second and Third Causes of
Action against all Defendants. (Dkt. No. 1, at 1, 9-12.)
9

before June 11, 2010,3 those claims are dismissed. However, Defendants’ statute-of-limitations
argument is rejected with regard to Plaintiff’s Title VII hostile-work-environment claim.
3.

Lack of Adverse Employment Action

After carefully considering the matter, the Court rejects Defendants’ adverseemployment-action argument with regard to Plaintiff’s Title VII claim of gender discrimination
for the reasons stated in Plaintiff’s opposition memorandum of law. See, supra, Part I.B. of this
Decision and Order.
The Court would add only one point. While Plaintiff’s Complaint does not appear to
expressly allege a loss of pay, sick time, or vacation time, it does appear to allege facts plausibly
suggesting a decrease in the terms, conditions or privileges of employment. For example, it
alleges that she received an unreasonable amount of additional work, was unjustifiably denied
overtime and was unjustifiably denied time off. (Dkt. No. 1 at ¶¶ 13, 14, 22.) Moreover, it
alleges that, on or about September 27, 2011, Plaintiff was placed on involuntary leave by
DOCS’ director of human resources, on which she remained until November 8, 2011. (Id. at ¶
31.) The Court has found at least one case indicating that being placed on involuntary leave is
itself an adverse employment action. See Lara v. City of New York, 97-CV-7663, 1999 WL
459803, at *4 (S.D.N.Y. June 29, 1999) (“There is no dispute that Lara is a member of a
protected class and that he suffered an adverse employment action when he was placed on the
involuntary leave of absence.”); cf. Waldo v. New York City Health and Hosp. Corp., 06-CV2614, 2009 WL 2777003, at *16 (E.D.N.Y. Aug. 31, 2009) (“Plaintiff satisfies the elements of a
retaliation claim [under Title VII] . . . adverse employment actions, i.e., plaintiff s placement on
involuntary medical leave and subsequent termination.”) (emphasis added).

3

By the Court’s calculation, 300 days before April 7, 2011, was June 11, 2010.
10

For these reasons, the following Title VII claims survive Defendants’ motion: (1)
Plaintiff’s Title VII hostile-work-environment claim against Defendant Horan in his official
capacity and against all other Defendants; (2) Plaintiff’s Title VII discrimination claim against
Defendant Horan in his official capacity and against all other Defendants to the extent that claim
based on events occurring after June 11, 2010; and (3) Plaintiff’s Title VII retaliation claim
against Defendant Horan in his official capacity and against all other Defendants to the extent
that claim is based on events occurring after June 11, 2010. However, because the Court
imagines that a more fully developed record and more detailed briefing on the statue-oflimitation issue and adverse-employment-action issue could yield a different result, the Court
will revisit those two issues on a motion for summary judgment, should Defendants choose to
file one.4
B.

Plaintiff’s Three NYHRL Claims

As stated above in Part I.B. of this Decision and Order, Defendants assert the following
three arguments, in pertinent part: (1) Plaintiff’s three NYHRL claims against Defendants New
York State, DOCS, Downstate C.F., and Fischer should be dismissed as barred by the doctrine of
sovereign immunity embodied in the Eleventh Amendment; (2) Plaintiff’s three NYHRL claims
against all Defendants should be dismissed to the extent they are based on events occurring more
than 300 days before April 7, 2011; and (3) in the alternative, Plaintiff’s Title NYHRL claim of
discrimination based on gender should be dismissed against all Defendants because it fails to
allege facts plausibly suggesting that she experienced an adverse employment action.
4

On any such motion for summary judgment, Defendants are also free to assert an
argument that Plaintiff’s Title VII hostile-work-environment claim against Defendant Horan in
his official capacity (as well as against DOCS and Downstate C.F.) should be dismissed as
redundant of her existing Title VII hostile-work-environment claim against Defendant New York
State–which the Court did not construe Defendants’ motion to dismiss to be making or Plaintiff’s
opposition papers to be conceding (and which the Court cannot sua sponte decide in this action).
11

1.

Sovereign Immunity Under Eleventh Amendment

After carefully considering the matter, the Court finds that Plaintiff’s three NYHRL
claims against Defendants New York State, DOCS, Downstate C.F., and Fischer should be
dismissed for the reasons stated in Defendants’ memoranda of law. See, supra, Part I.B. of this
Decision and Order.
The Court would add only two points. First, Defendants are correct that Plaintiff has
conceded this argument.5 Furthermore, the Court finds that, at the very least, Defendants have
met their lightened burden with regard to this argument. Second, in her opposition memorandum
of law, Plaintiff appears to implicitly withdraw her three NYHRL claims against Defendant
Horan in his official capacity. See, infra, note 5 of this Decision and Order. The Court finds that
such withdrawal is appropriate, again for the reasons stated in Defendants’ memoranda of law.
2.

Statute of Limitations

After carefully considering the matter, the Court finds that, in the alternative, Plaintiff’s
NYHRL discrimination claim and NYHRL retaliation claim against all Defendants should be
dismissed to the extent they are based on events occurring before June 11, 2010; however,
Defendants’ statute-of-limitations argument is rejected with regard to Plaintiff’s NYHRL hostilework-environment claim. The Court renders these conclusions for the reasons stated above in
Part III.A.2. of this Decision and Order.

5

For example, in her Opposition Memorandum of Law, Plaintiff argues that her
three NYHRL claims are asserted against only Defendant Horan in his individual capacity. (Dkt.
No. 13, at 6 [attaching page “6” of Plf.’s Opp’n Memo. of Law].) The Court notes that this fact
is not apparent from Plaintiff’s Complaint, which names Defendant Horan in his individual and
official capacities in its caption and appears to assert its Fourth, Fifth and Sixth Causes of Action
against all Defendants. (Dkt. No. 1, at 1, 12-14.)
12

3.

Lack of Adverse Employment Action

After carefully considering the matter, the Court rejects Defendants’ adverseemployment-action argument with regard to Plaintiff’s NYHRL claim of gender discrimination.
The Court renders this conclusion for the reasons stated above in Part III.A.2. of this Decision
and Order.
For these reasons, the following NYHRL claims survive Defendants’ motion: (1)
Plaintiff’s NYHRL hostile-work-environment claim against Defendant Horan in his individual
capacity; and (2) Plaintiff’s NYHRL discrimination claim and NYHRL retaliation claim against
Defendant Horan in his individual capacity to the extent those claims are based on events
occurring after June 11, 2010.
C.

Plaintiff’s Section 1983 Equal Protection Claim

As stated above in Part I.B. of this Decision and Order, Defendants assert the following
two arguments, in pertinent part: (1) Plaintiff’s three Section 1983 equal protection claim against
Defendants New York State, DOCS, Downstate C.F., and Fischer should be dismissed as barred
by the doctrine of sovereign immunity embodied in the Eleventh Amendment; and (2) Plaintiff’s
Section 1983 claim against Defendant Horan should be dismissed for failure to allege facts
plausibly suggesting that he was personally involved in the equal protection violation alleged.
1.

Sovereign Immunity Under Eleventh Amendment

After carefully considering the matter, the Court finds that Plaintiff’s Section 1983 equal
protection claim against Defendants New York State, DOCS, Downstate C.F., and Fischer
should be dismissed for the reasons stated in Defendants’ memoranda of law. See, supra, Part
I.B. of this Decision and Order.

13

The Court would add only two points. First, Defendants are correct that Plaintiff has
conceded this argument.6 Furthermore, the Court finds that, at the very least, Defendants have
met their lightened burden with regard to this argument. Second, in her opposition memorandum
of law, Plaintiff appears to implicitly withdraw her Section 1983 equal protection claim against
Defendant Horan in his official capacity. See, infra, note 6 of this Decision and Order. The
Court finds that such withdrawal is appropriate, again for the reasons stated in Defendants’
memoranda of law.
2.

Lack of Personal Involvement

After carefully considering the matter, the Court rejects Defendants’ lack-of-personalinvolvement argument with regard to Plaintiff’s Section 1983 equal protection claim against
Defendant Horan in his individual capacity. While it is true that Plaintiff did not respond to this
argument, it is also true that Defendants asserted it in only one sentence of the “Preliminary
Statement” section of their memorandum of law in chief. (Dkt. No. 11, Attach. 1, at 3 [attaching
page “1” of Defs.’ Memo. of Law].) In any event, the Court finds that, liberally construed,
Plaintiff’s Complaint alleges facts plausibly suggesting such personal involvement through, for
example, (allegedly) personally harassing her and retaliating against her based on her gender
(See, e.g., Dkt. No. 1, at ¶¶ 11-14, 18, 24, 32.)
For these reasons, surviving Defendants' motion is Plaintiff's Section 1983 equal
protection claim against Defendant Horan in his individual capacity.

6

For example, in her Opposition Memorandum of Law, Plaintiff argues that her
Section 1983 equal protection claim is asserted against only Defendant Horan in his individual
capacity. (Dkt. No. 13, at 6 [attaching page “6” of Plf.’s Opp’n Memo. of Law].) The Court
notes that this fact is not apparent from Plaintiff’s Complaint, which names Defendant Horan in
his individual and official capacities in its caption and appears to assert its Seventh Cause of
Action against all Defendants. (Dkt. No. 1, at 1, 15.)
14

D.

Plaintiff's Claims of Intentional Infliction of Emotional Distress and
Negligent Infliction of Emotional Distress

As stated above in Part I.B. of this Decision and Order, Defendants assert the following
five arguments, in pertinent part: (1) Plaintiff's two tort claims against Defendants New York
State, DOCS, Downstate C.F., and Fischer should be dismissed as barred by the doctrine of
sovereign immunity embodied in the Eleventh Amendment; (2) Plaintiff’s two tort claims
against Defendants New York State, DOCS, Downstate C.F., and Fischer for money damages
should be dismissed because those claims must be brought in the New York State Court of
Claims; (3) Plaintiff’s two tort claims against Defendant Fischer and Defendant Horan in his
individual capacity should be dismissed because New York Correction Law § 24 immunizes
them from such claims; (4) Plaintiff’s claim of intentional infliction of emotional distress against
Defendant Horan in his individual capacity should be dismissed because (a) it is barred by the
claim’s one-year limitations period and (b) it fails to allege facts plausibly suggesting conduct
that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community; and
(5) Plaintiff’s claim of negligent infliction of emotional distress against Defendant Horan in his
individual capacity should be dismissed because it fails to allege facts plausibly suggesting that
Defendant Horan unreasonably endangered Plaintiff’s physical safety or caused her to fear for
her physical safety.
1.

Sovereign Immunity Under Eleventh Amendment

After carefully considering the matter, the Court finds that Plaintiff’s two tort claims
against Defendants New York State, DOCS, Downstate C.F., and Fischer should be dismissed
for the reasons stated in Defendants’ memoranda of law. See, supra, Part I.B. of this Decision
and Order.
15

The Court would add only two points. First, Defendants are correct that Plaintiff has
conceded this argument.7 Furthermore, the Court finds that, at the very least, Defendants have
met their lightened burden with regard to this argument. Second, in her opposition memorandum
of law, Plaintiff appears to implicitly withdraw her two tort claims against Defendant Horan in
his official capacity. See, infra, note 7 of this Decision and Order. The Court finds that such
withdrawal is appropriate, again for the reasons stated in Defendants’ memoranda of law.
2.

Exclusive Jurisdiction in New York Court of Claims

After carefully considering the matter, the Court finds that it need not, and does not reach
the merit of this argument, because it appears to be redundant of the argument discussed above in
Part III.D.1. of this Decision and Order.
3.

Immunity Under New York Correction Law § 24

After carefully considering the matter, the Court finds that, in the alternative, Plaintiff’s
two tort claims against Defendant Horan in his official capacity (and Defendant Fischer) should
be dismissed for the reasons stated in Defendants’ memoranda of law. See, supra, Part I.B. of
this Decision and Order.
The Court would add only three points. First, Defendants are correct that Plaintiff has
conceded this argument.8 Furthermore, the Court finds that, at the very least, Defendants have

7

For example, in her Opposition Memorandum of Law, Plaintiff argues that her
two tort claims are asserted against only Defendant Horan in his individual capacity. (Dkt. No.
13, at 6 [attaching page “6” of Plf.’s Opp’n Memo. of Law].) The Court notes that this fact is
not apparent from Plaintiff’s Complaint, which names Defendant Horan in his individual and
official capacities in its caption and appears to assert its Eighth and Ninth Causes of Action
against all Defendants. (Dkt. No. 1, at 1, 15-16.)
8

For example, in her Opposition Memorandum of Law, Plaintiff argues that her
two tort claims are asserted against only Defendant Horan in his individual capacity. (Dkt. No.
13, at 6 [attaching page “6” of Plf.’s Opp’n Memo. of Law].) The Court notes that this fact is
not apparent from Plaintiff’s Complaint, which names Defendant Horan in his individual and
official capacities in its caption and appears to assert its Eighth and Ninth Causes of Action
against all Defendants. (Dkt. No. 1, at 1, 15-16.)
16

met their lightened burden with regard to this argument. Second, in her opposition memorandum
of law, Plaintiff appears to implicitly withdraw her two tort claims against Defendant Fisher and
Defendant Horan in his official capacity. See, infra, note 8 of this Decision and Order. The
Court finds that such withdrawal is appropriate, again for the reasons stated in Defendants’
memoranda of law. Third, Defendants do not appear to be requesting the dismissal of Plaintiff’s
two tort claims against Defendant Horan in his individual capacity;9 and, in any event, the Court
would reject any such argument for the reason stated in Plaintiff’s opposition memorandum of
law. See, supra, Part I.B. of this Decision and Order.
4.

Impact of Statute of Limitations on Claim of Intentional Infliction of
Emotional Distress

After carefully considering the matter, the Court finds that Plaintiff’s claim of intentional
infliction of emotional distress against Defendant Horan in his individual capacity should be
dismissed for the reasons stated in Defendants’ memoranda of law. See, supra, Part I.B. of this
Decision and Order.
The Court would add only two points. First, Defendants are correct that Plaintiff has
conceded this argument.10 Furthermore, the Court finds that, at the very least, Defendants have
9

The Court notes that the last paragraph on page 6 of Defendants’ memorandum of
law begins by stating, “As for Commissioner Fischer, if sued in his individual capacity, and
Senior Counselor Horan, Correction Law section 24 gives them immunity from such claims.”
(Dkt. No. 11, Attach. 1, at 8 [attaching page “6” of Defs.’ Memo. of Law].) The Court
construes that sentence as containing a typographical error, intending to mean, “As for Senior
Counselor Horan, if sued in his individual capacity, and Commissioner Fischer (who is sued
only in his official capacity), Correction Law section 24 gives them immunity from such
claims.” Elsewhere in their memorandum of law, Defendants appear to recognize that the
caption of the Complaint expressly names Fisher in only his official capacity, and Horan in both
his official and individual capacities.
10

For example, in her Opposition Memorandum of Law, Plaintiff argues that her
claim of intentional infliction of emotional distress is asserted against only Defendant Horan in
his individual capacity. (Dkt. No. 13, at 6 [attaching page “6” of Plf.’s Opp’n Memo. of Law].)
The Court notes that this fact is not apparent from Plaintiff’s Complaint, which names Defendant
Horan in his individual and official capacities in its caption and appears to assert its Ninth Cause
of Action against all Defendants. (Dkt. No. 1, at 1, 16.)
17

met their lightened burden with regard to this argument. Second, in her opposition memorandum
of law, Plaintiff appears to implicitly withdraw her claim of intentional infliction of emotional
distress Defendant Horan in his official capacity as well as against the other Defendants. See,
infra, note 8 of this Decision and Order. The Court finds that such withdrawal is appropriate,
again for the reasons stated in Defendants’ memoranda of law.
5.

Lack of Outrageous-and-Extreme Element of Claim of Intentional
Infliction of Emotional Distress

After carefully considering the matter, the Court finds that it need not, and does not,
reach the merit of this argument, given the statute-of-limitations ground on which to dismiss this
claim against Defendant Horan in his individual capacity.
6.

Lack of Danger-to-Physical Safety Element of Claim of Negligent
Infliction of Emotional Distress

After carefully considering the matter, the Court finds that Plaintiff’s claim of negligent
infliction of emotional distress against Defendant Horan in his individual capacity should be
dismissed for the reasons stated in Defendants’ memoranda of law. See, supra, Part I.B. of this
Decision and Order.
The Court would add only two points. First, Plaintiff’s detailed Complaint is
conspicuously absent of any factual allegation plausibly suggesting Defendant Horan had, or
even threatened, physical contact with her. (See, e.g., Dkt. No. 1, at ¶¶ 11-14, 18, 24, 32.)
Second, because the actions alleged here were intentional and deliberate, they appear outside the
ambit of actionable negligence. “New York Courts have rejected uniformly such attempts to
transmogrify intentional torts into ‘negligence.’” Schmidt v. Bishop, 779 F. Supp. 321, 324-25
(S.D.N.Y.1991) (dismissing negligence claim by plaintiff who alleged that her priest sexually
abused her); accord, Wilson v. Diocese of N.Y. of Episcopal Church, 96-CV-2400, 1998 WL
82921, at *6 (S.D.N.Y. Feb. 26, 1998) (citing cases).
18

For these reasons, Plaintiff’s two tort claims against Defendants are dismissed in their
entirety.
ACCORDINGLY, it is
ORDERED that, in accordance with note 1 of this Decision and Order, the Clerk of the
Court is directed to amend the docket sheet so as to identify Peter Horan as a “Senior
Corrections Counselor” at Downstate Correctional Facility, rather than as the “Commissioner” of
that facility; and it is further
ORDERED that Defendants’ motion to dismiss for failure to state a claim upon which
relief can be granted (Dkt. No. 11) is GRANTED in part and DENIED in part; and it is further
ORDERED that the following claims are DISMISSED from Plaintiff’s Complaint (Dkt.
No. 1):
(1) Plaintiff’s Title VII discrimination claim against Defendant Horan in his
individual capacity;
(2) Plaintiff’s Title VII hostile-work-environment claim against Defendant Horan
in his individual capacity;
(3) Plaintiff’s Title VII retaliation claim against Defendant Horan in his
individual capacity;
(4) Plaintiff’s Title VII discrimination claim against Defendants New York State,
DOCS, Downstate C.F., Fischer, and Horan in his official capacity to the extent it is
based on events occurring before June 11, 2010;
(5) Plaintiff’s Title VII retaliation claim against Defendants New York State,
DOCS, Downstate C.F., Fischer, and Horan in his official capacity to the extent it is
based on events occurring before June 11, 2010;
19

(6) Plaintiff’s NYHRL discrimination claim against Defendants New York State,
DOCS, Downstate C.F., Fischer, and Horan in his official capacity;
(7) Plaintiff’s NYHRL hostile-work-environment claim against Defendants New
York State, DOCS, Downstate C.F., Fischer, and Horan in his official capacity;
(8) Plaintiff’s NYHRL retaliation claim against Defendants New York State,
DOCS, Downstate C.F., Fischer, and Horan in his official capacity;
(9) Plaintiff’s NYHRL discrimination claim against Defendant Horan in his
individual capacity to the extent that claim is based on events occurring before June 11,
2010;
(10) Plaintiff’s NYHRL retaliation claim against Defendant Horan in his
individual capacity to the extent that claim is based on events occurring before June 11,
2010;
(11) Plaintiff’s Section 1983 equal protection claim against Defendants New York
State, DOCS, Downstate C.F., Fischer, and Horan in his official capacity;
(12) Plaintiff’s intentional-infliction-of-emotional-distress claim against all
Defendants; and
(13) Plaintiff’s negligent-infliction-of-emotional-distress claim against all
Defendants; and it is further
ORDERED that the following claims SURVIVE Defendants’ motion (Dkt. No. 11):
(1) Plaintiff's Title VII hostile-work-environment claim against Defendants New
York State, DOCS, Downstate C.F., Fischer, and Horan in his official capacity;
(2) Plaintiff's Title VII discrimination claim against Defendants NewYork State,
DOCS, Downstate C.F., Fischer, and Horan in his official capacity to the extent that
claim based on events occurring after June 11, 2010;
20

(3) Plaintiff's Title VII retaliation claim against Defendants New York State,
DOCS, Downstate C.F., Fischer, and Horan in his official capacity to the extent that
claim based on events occurring after June 11, 2010
(4) Plaintiff's NYHRL hostile-work-environment claim against Defendant Horan
in his individual capacity;
(5) Plaintiff's NYHRL discrimination claim against Defendant Horan in his
individual capacity to the extent that claim is based on events occurring after June 11,
2010;
(6) Plaintiff's NYHRL retaliation claim against Defendant Horan in his individual
capacity to the extent that claim is based on events occurring after June 11, 2010; and
(7) Plaintiff's Section 1983 equal protection claim against Defendant Horan in his
individual capacity; and it is further
ORDERED that this case is referred back to Magistrate Judge Treece for a Rule 16
conference and the setting of pretrial scheduling deadlines.
Dated: October 15, 2013
Syracuse, New York

21