Adams v. Ellis et al
Filing
67
MEMORANDUM AND ORDER. For the reasons in this memorandum and order, defendants' motion for summary judgment on plaintiff's remaining claims (ECF No. 53) is GRANTED. The Clerk is directed to enter judgment for the defendants. Granting 53 Motion for Summary Judgment. (Signed by Judge P. Kevin Castel on 10/4/2012) (rjm)
USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADREINA ADAMS,
Plaintiff,
DOC #: _ _ _ _ _ _ __
DATE FILED: LD - S -I d- .
-.::::=:.1
09 Civ. 1329 (PKC)
MEMORANDUM
Al\o1) ORDER
-againstANTHONY ELLIS, EXECUTIVE DIRECTOR
OF NYS DIVISION OF PAROLE; JOSE
BURGOS, DIRECTOR OF HUMAN
RESOURCE MANAGEMENT; MILTON
BROWN, REGIONAL DIRECTOR;
WILLIAM HOGAN, AREA SUPERVISOR;
IRWIN DAVIES, ASSISTANT REGIONAL
DIRECTOR; and ROBERT OESER,
EMPLOYEE RELATIONS OFFICER,
Defendants.
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P. KEVIN CASTEL, District Judge:
Plaintiff Adreina Adams, who has been represented by counsel throughout this
proceeding, brought this action pursuant to 42 U.S.C. § 1983 alleging that the defendants,
managerial officers of the New York State Division of Parole ("DOP"), retaliated against her in
response to her union activities, depriving her of certain rights guaranteed by the First, Fourth,
and Fourteenth Amendments. On July 1,2011, defendants moved for summary judgment on
plaintiff's First Amendment retaliation claim. On March 2,2012, the Court granted defendants'
motion, expressing no opinion on plaintiff's Fourth and Fourteenth Amendment claims. Adams
v. Ellis, 2012 WL 693568 (S.D.N.Y. Mar. 2, 2012). On April 23, 2012, defendants moved for
summary judgment on plaintiff's remaining claims. For the reasons discussed below,
defendants' motion is granted.
T.s
BACKGROUND
I.
Factual Background
The facts below are drawn from this court’s first summary judgment opinion and
references cited therein. See 2012 WL 693568. Defendant is a parole officer in the New York
State Division of Parole (“DOP”) and was at all relevant times assigned to the Manhattan 2
Bureau.1 She is also an officer in the Public Employees Federation (“PEF”), the union that
represents parole officers. Defendants were, at all relevant times, supervisory officers in the
DOP: Jose Burgos was the Director of Human Resources Management for DOP; Milton Brown
was the Regional Director for Region 1 of DOP, comprising Manhattan and the Bronx; Irwin
Davies was Deputy Regional Director for Metro 1, located in Manhattan; and William Hogan
was Area Supervisor for the Manhattan 2 Bureau.
Plaintiff publicly criticized certain DOP policy changes affecting parole officer
duties and work requirements. She spoke at a PEF rally on July 8, 2005 (the “2005 rally”) and
gave testimony at a State Assembly hearing on DOP policies on January 11, 2006 (the “2006
hearing”). Defendants uniformly denied having any knowledge of plaintiff having participated
in or spoken at the 2005 rally or at the 2006 hearing, with the exception of Hogan, who recalled
Adams attending the 2005 rally but had no knowledge of her level of participation.
Plaintiff alleged that, sometime after the 2006 hearing, defendants took several
adverse actions against her. She alleged that the Office of Professional Responsibility (“OPR”)
briefly audited her paperwork and, allegedly, the paperwork of all other attendees at the 2006
hearing, although there were no consequences to the alleged audits. Defendants uniformly
testified that they had no control over or awareness of OPR audits. Plaintiff also alleged that one
1
DOP merged with the New York State Department of Correction Services (“DOCS”) in 2011 to form the New
York State Department of Corrections and Community Supervision (“DOCCS”). Because the relevant conduct in
this action occurred prior to the merger, the Court refers throughout to DOP.
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of her paychecks was “held up” along with those of other attendees. Plaintiff was unaware
whether everyone in her bureau received paychecks late. Defendants uniformly testified that
they had no control over the issuance of paychecks. Plaintiff also alleged that defendants
ordered her Supervisory Parole Officer, Christopher Wrobleski, to “monitor [plaintiff’s]
paperwork.” Plaintiff also alleged that a vacation request she made was “denied against office
policy and procedures,” and that since October 2006, Wrobleski has kept a list of all officers
taking time off for union activities.
On October 25, 2006, plaintiff was involved in an altercation with a fellow parole
officer and Local 236 Shop Steward, Milagio Plumey, which led to plaintiff’s discipline and
transfer. Although plaintiff described it as a “verbal altercation,” Plumey alleged that plaintiff
pulled a chair out from under her when she attempted to sit in it. Hogan, who had witnessed the
altercation, corroborated Plumey’s account. Other witnesses stated either that they saw Adams
pull out the chair, that they heard a noise and saw Plumey falling, or that they saw nothing.
Plaintiff never appeared at an interrogation as part of the official investigation into the
altercation, due to her inability to secure counsel for the first scheduled interrogation and her
alleged sickness on both of the make-up dates. Burgos executed a Notice of Discipline (“NOD”)
suspending plaintiff for nine months and reassigning her to the Brooklyn 5 Regional Office,
concluding that plaintiff had pulled the chair from under Plumey and that it would be
inappropriate for plaintiff and Plumey to continue working in the same office.
Plantiff filed a grievance over the NOD. Plaintiff’s representative during the
grievance process, Manuela Clemente, stated that DOP officials were uncooperative during the
process, because they told witnesses they did not have to give statements to plaintiff, did not
offer their witness statements for her review, and did not provide her a “copy” or “tape” from the
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grievance hearing. Clemente testified that these actions were contrary to the requirements of the
Collective Bargaining Agreement (“CBA”). Review of the CBA indicates that the actions of the
DOP officials were not inconsistent with the requirements of the CBA. The grievance process
did not result in a consensual resolution, and plaintiff elected to go to arbitration. On March 17,
2007, the arbitrator issued an Opinion and Award finding that there was “just cause” for the
NOD and finding “no evidence that DOP in any way instigated this action because of its
displeasure with the local union leadership.” The arbitrator found that Adams had created
“reasonable doubt” as to whether she could be counted on to put aside any animus towards
Plumey in the future. Therefore, the arbitrator upheld the permanent reassignment; however, he
reduced the suspension from nine months to one week.
Plaintiff asserted that her penalty was “unprecedented,” based on Clemente’s
testimony to the same effect. Clemente gave this testimony notwithstanding her knowledge of
another officer who had been transferred to Buffalo. Clemente distinguished the Buffalo transfer
because, she testified, the Buffalo transferee was transferred to be “re-trained” to “embezzle” for
Director Ellis. Clemente also testified that officers guilty of more serious misconduct had
received preferential treatment, citing as proof that an officer who had accidentally discharged
her gun several times was given a “fantastic” administrative job. On the typicality of the penalty,
Davies testified, and plaintiff agreed, that in Davies’s three years as Deputy Regional Directory
there were three NODs issued: one for Ms. Adams, one for a senior parole officer “who made
some extremely inappropriate remarks to someone he supervised,” and one for a parole officer
arrested for possession of cocaine. Davies testified that the officer who made inappropriate
remarks was suspended for one or two weeks and reassigned.
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As regards her particular reassignment, plaintiff asserted that “Brooklyn 5 is a
punishment bureau because it contains the biggest and most violent police precincts.” She
further asserted that, at Brooklyn 5, she was given an increased caseload, that the office location
created a travel hardship, and that her fellow parole officers shunned her. Defendants asserted
that plaintiff’s transfer involved no change to her compensation, duties and responsibilities, or
conditions of employment.
In June 2007, plaintiff wrote to defendant Brown and requested a “hardship
transfer” back to Manhattan. In her request, plaintiff asserted that the increased travel time
aggravated a back injury and that her new colleagues were shunning her, for which she blamed
“the agency” for having sent an email to her colleagues containing a part of the arbitrator’s
decision.2 Brown discussed the situation with Burgos and responded to plaintiff that they had
decided to uphold the decision of a permanent transfer, and he directed her to address her
concerns about her co-workers to her new chain of command.
II.
Plaintiff’s Claims
Based on the foregoing, plaintiff brought three claims. The first, pursuant to 42
U.S.C. § 1983, asserted that defendants violated her rights under the Equal Protection Clause of
the Fourteenth Amendment by being “deliberately indifferent to the hostile work environment
and harassment of plaintiff and other Union activists created by the defendants and other parole
officers under their supervision . . . because of their Union activities and outspokenness.”
(Compl. ¶ 69.) The second, also pursuant to 42 U.S.C. § 1983, asserted that, as a result of the
defendants’ actions, plaintiff “ha[d] been unlawfully subjected to a hostile working environment
2
Here, plaintiff appeared to refer not to an email but to an edition of a DOP publication called “Human Resource
Notes” or “HRN.” HRN is a publication predating the tenure of Burgos, and it regularly included a section entitled
“Labor Relations.” The Labor Relations section of the edition in question referred to plaintiff’s arbitration but did
not identify plaintiff or any specific, recognizable details. Following the publication of the edition in question, PEF
and plaintiff requested that Burgos stop including the Labor Relations section, and Burgos complied.
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and harassment in retaliation for exercising her First, Fourth and Fourteenth Amendment rights
to protected speech.” (Compl. ¶ 71.) The third, grounded in no federal law, asserted a
freestanding “hostile work environment” claim. (Compl. ¶ 76.)
III.
The First Summary Judgment Opinion
Defendants moved for summary judgment but addressed only plaintiff’s First
Amendment retaliation claim. In response to that motion, plaintiff did not come forward with
evidence or argument that she had been retaliated against on the basis of exercising her First
Amendment right to associate with the union. The Court granted summary judgment on
plaintiff’s First Amendment retaliation claim. Familiarity with the Court’s Memorandum and
Order of March 2, 2012 is assumed.
IV.
The Current Motion and Opposition
Following the Court’s first summary judgment opinion, defendants filed a
supplemental motion for summary judgment on plaintiff’s remaining claims, relying on the same
Rule 56.1 Statement, declarations, and exhibits. Plaintiff responded with opposition papers and
an updated Rule 56.1 Statement, Rule 56.1 Counterstatement, declaration, and new exhibits.
Plaintiff’s new material falls into the following categories:
Relationship of Plaintiff’s Treatment to Union Activity:
o assertion that plaintiff, in addition to speaking on matters of public
concern, was also a “vocal Union activist” and was retaliated against
on this basis as well. (Compare e.g., Adams Revised Decl. ¶¶ 6-10,
and Pl. Revised 56.1 Counterstatement ¶¶ 56-59, with Adams Decl. ¶¶
6-10, and Pl. 56.1 Counterstatement ¶¶ 53, 55);
o assertion that Burgos told Wrobleski that plaintiff’s entire “active
union bureau” was being scrutinized, citing to a transcript page not
included in plaintiff’s submissions (Pl. Revised 56.1 Counterstatement
¶ 25);
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o assertion that the OPR audit was directed at the entire Manhattan 2
Bureau because it was a “strong union shop,” citing to Wrobleski’s
testimony that he “assume[d]” the entire bureau was in PEF. (Pl.
Revised 56.1 Counterstatement ¶ 77; Cronin Decl. Ex. C. at 100-101);
o assertion that non-defendant Ellis, one-time Executive Director of
BOP, enforced strict scheduling only against union activists, based on
testimony of Clemente at 2006 hearing, in which she stated that Ellis
had introduced stricter scheduling but made no reference to selective
enforcement (Pl. Revised 56.1 Counterstatement ¶ 85; Cronin Decl.
Ex. S. at 73-76);
o assertion that “[t]here is no doubt that Management was aware of the
Union’s active role in fighting them . . . . Because the Union Board
called for the resignation of [Ellis], the union activists including
plaintiff were vocal in complaining that DOP was responding by a
campaign of harassment . . . .” (Pl Revised 56.1 Counterstatement ¶
92.)
Conflicting Testimony on Chair Incident: plaintiff’s assertion that she did not
pull out the chair and citation to witness statements in which certain witnesses
could not affirmatively state that plaintiff pulled out the chair (Pl. Revised
56.1 Counterstatement ¶¶ 35, 95-96; Adams Revised Decl. ¶¶ 32, 43);
Plaintiff’s Illness: plaintiff’s assertions that she was in fact sick and visiting
doctors on the dates of the make-up interrogations that she missed, and that,
pursuant to the CBA, she should not have been required to substantiate her
absence with a doctor’s note unless she had been absent three days. (Pl.
Revised 56.1 Counterstatement ¶¶ 14-20; Adams Revised Decl. ¶¶ 67-73);
Availability of Witnesses: plaintiff’s assertion that witnesses to the chair
incident told her that they were told not to give statements to her; Clemente’s
assertion to the same effect; Hogan’s testimony that Davies told him plaintiff
was not “entitled” to speak to witnesses (Adams Revised Decl. ¶ 36; Pl.
Revised 56.1 Counterstatement ¶ 98 & Cronin Decl. Ex. W. at 185); citation
to a PEF flier that allegedly establishes that “pursuant to the [CBA], parole
officers must give statements to litigant or face disciplinary charges,” but
which states that parole officers must cooperate with inquiries from OPR, not
“litigant[s]” (Pl. Revised 56.1 Counterstatement ¶ 32 & Cronin Decl. Ex. M);
Difficult Conditions at Brooklyn 5 (Pl Revised 56.1 Counterstatement ¶¶ 7476; 86, 88, 99-100; Adams Revised Decl. ¶¶ 54, 56, 58);
Permanent Transfer: assertions of plaintiff and Clemente that neither is aware
of any other parole officer who has ever been disciplined with a permanent
transfer (Pl. Revised 56.1 Counterstatement ¶¶ 83, 90; Adams Revised Decl. ¶
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61; Clemente Decl. ¶¶ 2-4.)
DISCUSSION
I.
The Court Enters Summary Judgment Against Plaintiff on Plaintiff’s
Equal Protection Claim.3
Plaintiff’s first claim is for defendants’ alleged creation of or indifference to the
“hostile work environment and harassment of plaintiff and other Union activists . . . because of
their Union activities and outspokenness in violation of the Equal Protection Clause of the
Fourteenth Amendment.” (Compl. ¶ 69.) Plaintiff offers no support for the proposition that
“harassment” or hostile work environment claims based on a government employee’s union
membership or protected speech are cognizable under the Equal Protection Clause. Such a claim
appears indistinguishable from a claim that plaintiff was retaliated against for exercising her free
speech and associational rights in violation of the First Amendment. A robust body of case law
establishes, and limits, a government employee’s right to recover for retaliation for exercise of
First Amendment Rights. E.g. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); Connick v.
Myers, 461 U.S. 138 (1983).
The Court finds no support for the proposition that a failed First Amendment
retaliation claim is cognizable under the Equal Protection Clause merely because the employee
received treatment that was disparate from other employees premised upon her speech activities.
Under similar circumstances, the Second Circuit recognized plaintiffs’ Equal Protection claim
but held that it was indistinct from plaintiffs’ First Amendment retaliation claim and failed for
the same reasons. Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2004). Specifically, in Cobb, the
court addressed plaintiffs’ claims that their employer, a corrections department, had retaliated
3
The standards governing a motion for summary judgment are set forth in the Court’s Memorandum and Order of
March 2, 2012 and need not be repeated. See 2012 WL 693568 at *6.
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against them for their union association by attempting to discipline them, but not other
corrections officers, when they refused overtime. Id. at 94-99. Plaintiffs alleged that the
employer’s conduct was both retaliation for exercise of First Amendment rights and “selective
prosecution” in violation of the Equal Protection Clause. Id. at 99. The Second Circuit
recognized both claims but held that plaintiffs’ selective prosecution claim “‘coalesce[d]’” with
the plaintiffs’ First Amendment retaliation claim, and failed for the same reasons. Id. at 110.
(quoting African Trade & Info Ctr. v. Abromaitis, 294 F.3d 355, 363 (2d Cir. 2002)).4
Reading Cobb, this Court assumes without deciding that a government employee
can bring a “harassment” or hostile work environment claim based on First Amendment activity
under the Equal Protection Clause. But the Court also concludes that, as in Cobb, plaintiff’s
First Amendment and Equal Protection claims have “coalesce[d].” Cobb, 363 F.3d at 110
(quotations omitted). However, the fact that the claims coalesce does not necessarily require
entry of judgment against plaintiff on her equal protection claim in this case. Defendants
initially moved for summary judgment solely on plaintiff’s First Amendment claim and only
now move for summary judgment on plaintiff’s Equal Protection claim. In the interim, plaintiffs
have revised their opposition papers, and their Equal Protection claim, although indistinct, has
distinct support. Accordingly, the Court is called upon to answer a question it has once resolved,
whether defendants took adverse action in retaliation for plaintiff’s First Amendment activity,
but on the basis of new evidence and argument.
4
In both Cobb, 363 F.3d at 110, and African Trade, 294 F.3d at 363, the Second Circuit went on to discuss a distinct
Equal Protection claim, known as a “class-of-one” claim, in which plaintiffs allege not that they were discriminated
against for established impermissible reasons but simply for no rational reason. The Supreme Court has since held
that “the class-of-one theory of equal protection does not apply in the public employment context.” Engquist v.
Oregon Dept. of Agr., 553 U.S. 591, 598 (2008).
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Defendants argue that, even assuming further review of plaintiff’s claims is
warranted, the law of the case doctrine counsels this Court to abide by the conclusions set forth
in its first summary judgment opinion. “As most commonly defined, the [law of the case]
doctrine posits that when a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S.
605, 618 (1983). However, rulings of a district court remain subject to revision “at any time
before entry of final judgment,” Rule 54(b), Fed R. Civ. P, and “[t]he major grounds justifying
reconsideration are an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice,” DiLauria v. Power Auth. of N.Y.,
982 F.2d 73, 76 (2d Cir. 1992) (quotations and citations omitted). Plaintiffs do not argue that
manifest injustice or a change in controlling law require reconsideration; rather, plaintiffs argue
in effect that “new” facts dictate new conclusions based on the same controlling law. The Court
disagrees.
In this case, the Court’s first summary judgment opinion stated several
conclusions which independently disposed of plaintiff’s First Amendment retaliation claim. First,
plaintiff failed to raise a genuine dispute whether her speech was speech on a matter of public
concern. 2012 WL 693568 at *9-*11. Second, plaintiff failed to raise a genuine dispute whether
any adverse actions that the defendants took were motivated by plaintiff’s allegedly protected
speech. Id. at *12-*17. In so holding, the Court held that plaintiff failed to raise a genuine
dispute whether defendants had involvement in the OPR audit, the paycheck delay, the vacation
denial, or conditions at Brooklyn 5 sufficient to create liability under Section 1983. Id. at *7-*8.
Plaintiff also failed to raise a genuine dispute whether defendants had created the First
Amendment equivalent of a hostile work environment—a “critical mass” adverse action. Id.
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at*13-*14. Instead, plaintiff raised a genuine dispute only as to whether her discipline and
transfer were adverse actions, but plaintiff failed to raise a genuine dispute whether her allegedly
protected speech was a motivating factor in defendants’ decision to discipline and transfer her.
Id. at *14-*17. Third, the Court held that even if plaintiff had engaged in protected speech, and
even if it was a motivating factor in the discipline and transfer, plaintiff failed to raise a genuine
dispute whether defendants would have taken the same actions regardless of that speech. Id. at
*17.
To succeed, plaintiff’s new evidence would have to suffice to upset each of these
three conclusions. It does not. Plaintiff directs much of her revised Rule 56.1 Counterstatement,
declarations, and exhibits toward establishing that, in addition to exercising free speech rights,
she exercised associational rights as a “vocal Union activist,” and that union activists were
harassed. The Court assumes that plaintiff’s union membership is sufficient to establish that she
engaged in free association on a matter of public concern. See Cobb, 363 F.3d at 110 (applying
Connick standards to free association claim). However, plaintiff’s updated allegations of unionmember harassment do not establish any new adverse actions. First, plaintiff offers no new
evidence that the defendants had sufficient involvement in the OPR audit, the paycheck delay,
the vacation denial, or the conditions at Brooklyn 5 to give rise to liability under Section 1983.
These events, individually or collectively, do not amount to adverse employment action.
Second, plaintiff’s other evidence of anti-union actions is either conclusory, (see Pl. Revised
56.2 Counterstatement ¶ 92 (“no doubt” that “Management” was aware of union opposition, and
union activists were vocal in complaining of “campaign of harassment”)), improperly supported,
(see id. ¶ 85 & Cronin Decl. Ex. S. at 73-76 (attempting to establish unequal application of strict
scheduling by reference to testimony detailing only strict scheduling, not unequal application)),
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or relates to behavior that could not reasonably “deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights,” Washington, 373 F.3d at 320; (see Pl.
Revised 56.1 Counterstatement ¶ 25 (referencing “scrutiny” of entire bureau)). Third, plaintiff
offers no new evidence sufficient to establish either “a pattern of near constant harassment,”
Phillips, 278 F.3d at 109, or a single “particularly severe” episode, Deters, 368 F.3d at 189, that
could establish a critical mass claim. Plaintiff also offers no new circumstantial evidence or
evidence of temporal proximity between any specific union activity and her discipline and
transfer that would allow the reasonable inference that those actions were motivated by
plaintiff’s union activity or association. See 2012 WL 693568 at *14-*17 (discussing qualifying
circumstantial evidence and requisite temporal proximity). Finally, nothing in plaintiff’s new
submissions addresses the Court’s conclusion that she failed to raise a genuine dispute whether
defendants would have disciplined and transferred her regardless of any retaliatory motive. See
id. at *17.
II.
The Court's First Summary Judgment Opinion Disposed of Plaintiff’s
Free-Speech Retaliation Claim.
Plaintiff’s second cause of action is for defendants’ “unlawfully subject[ing]
[plaintiff] to a hostile working environment and harassment in retaliation for exercising her First,
Fourth, and Fourteenth Amendment rights to protected speech.” (Compl. ¶ 71.) The Court is
aware of no authority for the proposition that the Fourth or Fourteenth Amendments confer rights
to protected speech.5 As discussed above, the Court concluded in its first summary judgment
opinion that plaintiff failed to raise a genuine issue of material fact as to whether she was
5
The Court is speaking of rights directly conferred by the Fourteenth Amendment, as distinguished from First
Amendment rights incorporated via the Fourteenth Amendment. See 44 Liquormart v. Rhode Island, 517 U.S. 484,
489 n.1 (1996).
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retaliated against for exercising her First Amendment right to free speech. Accordingly, the
court's first summary judgment opinion disposed of plaintiffs second cause of action.
III.
Plaintiffs Freestanding Hostile Environment Claim is not Cognizable
under Section 1983.
Plaintiffs third cause of action is for creation of a "hostile working environment"
in violation of no identified provision of the Constitution or federal law. As with her other
claims, plaintiff asserts this claim pursuant to 42 U.S.C. § 1983. "Section 1983 is not itself a
source of substantive rights, but merely provides a method for vindicating federal rights
elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994) (quotations omitted). A
necessary "first step in any such claim is to identify the specific constitutional right allegedly
infringed." Id. Plaintiffs third claim identifies no constitutional
right~-{)r
right created by
federal law-infringed by the creation of a hostile working environment. Therefore, it is not
cognizable under Section 1983.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment on
plaintiffs remaining claims (ECF No.53) is GRANTED. The Clerk is directed to enter judgment
for the defendants.
Dated: New York, New York
October 4,2012
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