Carballal v. New York City Housing Authority et al
Filing
27
MEMORANDUM AND ORDER granting 11 Motion for Summary Judgment. NYCHA's motion for summary judgment (docket no. 11) is granted. (Signed by Judge Naomi Reice Buchwald on 7/9/2013) Copies Mailed By Chambers. (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
MINERVA SOBA, as guardian ad litem for
her daughter, Stephanie Carballal,
Plaintiff,
MEMORANDUM AND ORDER
- against -
11 Civ. 7430 (NRB)
NEW YORK CITY HOUSING AUTHORITY and
BENJAMIN VALENTIN,
Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Minerva Soba (“plaintiff”), as guardian ad litem for her
intellectually
disabled
daughter,
Stephanie
Carballal
(“Carballal”), commenced this action against the New York City
Housing
Authority
(“NYCHA”)
and
its
former
exterminator,
Benjamin Valentin (“Valentin”), alleging that Valentin sexually
assaulted
Carballal
in
violation
of
federal
and
state
law.
Valentin has not answered plaintiff’s complaint or otherwise
appeared in this action.1
Nonetheless, plaintiff maintains that NYCHA is liable for
Valentin’s alleged misconduct pursuant to Monell v. Department
of Social Services, 436 U.S. 658 (1978), and a state law theory
of
1
vicarious
liability.
In
addition,
plaintiff
asserts
a
The Clerk of Court entered a certificate of default against Valentin
on June 7, 2013. See Clerk’s Certificate, June 7, 2013, Dkt. No. 22.
direct
claim
against
NYCHA
for
negligent
hiring,
retention,
training, and/or supervision of Valentin.
In the motion before the Court, NYCHA seeks dismissal of
plaintiff’s claims pursuant to Rule 56 of the Federal Rules of
Civil Procedure (“Rule 56”).
we grant NYCHA’s motion.
For the reasons set forth below,
We wish to make clear, however, that
this Memorandum and Order is addressed solely to the issue of
whether NYCHA may be held liable for the conduct alleged.
BACKGROUND2
I.
Introduction
Carballal is an intellectually challenged adult who lives
with her siblings and mother (i.e., plaintiff) in an apartment
2
In analyzing the instant motion, we have disregarded numerous
citations and averments in the parties’ Rule 56.1 statements.
In many
instances, NYCHA cites inadmissible hearsay evidence (e.g., the prior
testimony of nonparty witnesses) to support the existence of an allegedly
undisputed fact.
Plaintiff, in turn, endeavors to dispute NYCHA’s factual
assertions on the basis of evidentiary objections alone. However, plaintiff
frequently does not cite any controverting evidence, as required by Local
Rule 56.1(d), to demonstrate the existence of a genuine factual dispute. In
accordance with Local Rule 56.1(b), plaintiff also provides a statement of
additional facts that allegedly present genuine issues to be tried.
However, many of these facts consist of entirely formulaic data (e.g.,
Carballal’s age) that the parties cannot seriously dispute.
Given these shortcomings in the parties’ Rule 56.1 statements, we have
undertaken “an assiduous review of the record” to determine whether material
facts are genuinely in dispute. Spiegel v. Schulmann, 604 F.3d 72, 83 (2d
Cir. 2010) (internal quotation marks omitted). Accordingly, this background
is derived from (1) the Amended Complaint (“Compl.”), filed January 11,
2012; (2) the Declaration of Joanne Filiberti in Support of Defendant’s
Motion for Summary Judgment (“Filiberti Decl.”), filed September 14, 2012,
and the exhibits annexed thereto; (3) the Declaration of Stuart Jacobs in
Opposition to Defendant’s Motion for Summary Judgment (“Jacobs Decl.”),
filed November 6, 2012, and the exhibits annexed thereto; and (4) the
Supplemental Declaration of Joanne Filiberti in Further Support of
Defendant’s Motion for Summary Judgment (“Supp. Filiberti Decl.”), filed May
31, 2013, and the exhibit annexed thereto. When citing to specific pages of
the exhibits annexed to the Filiberti Declarations, we refer to the page
numbers provided in the ECF header.
2
building
owned
and
operated
by
NYCHA.
Compl.
¶¶
12-14.
Valentin is a former exterminator in NYCHA’s Manhattan Property
Management Department (the “Department”).
Ex. A, at 1.
action,
Prior to the alleged incident underlying this
Valentin
approximately
See Filiberti Decl.
23
worked
a
See
years.
as
NYCHA
id.
Ex.
exterminator
O,
pt.
1,
at
for
27
(identifying “7/27/1987” as Valentin’s date of appointment).
On September 14, 2010, Carballal was allegedly alone in
the apartment, wearing a black nightgown, when Valentin knocked
on
the
door
and
told
extermination work.
90:12-13,
Carballal
that
he
needed
to
perform
Compl. ¶¶ 16-18; Filiberti Decl. Ex. B, at
111:10-11.
Upon
entering
the
apartment,
Valentin
allegedly groped Carballal’s breasts and subjected her to other
nonconsensual sex acts.
Compl. ¶¶ 19-28.
Plaintiff reported
the incident to the police, who arrested Valentin later that
day.
Id. ¶ 32.
The New York County District Attorney’s Office
declined to prosecute Valentin.
54:16-23.
See Filiberti Decl. Ex. B, at
However, NYCHA launched a formal disciplinary action
against Valentin, resulting in his ultimate resignation.
See
generally id. Exs. B-C, E.
Plaintiff now seeks to hold NYCHA liable for Valentin’s
alleged misconduct on a theory of municipal liability under 42
U.S.C.
§
1983
Specifically,
(“section
plaintiff
1983”).
maintains
3
See
that
Compl.
¶¶
Carballal’s
75-82.
alleged
injuries were the result of NYCHA’s official policy, practice,
or custom, see id. ¶ 77, including its failure to properly
recruit,
screen,
train,
employees, see id. ¶ 78.
discipline,
and/or
supervise
Plaintiff also seeks to hold NYCHA
liable under a state law theory of respondeat superior.
¶¶ 48, 53, 63, 68.
its
Id.
To do so, plaintiff contends, inter alia,
that Valentin committed the alleged sexual assault within the
scope of his employment.
Id. ¶¶ 47, 52.
Finally, plaintiff
alleges that NYCHA is independently liable to Carballal for
negligently
Valentin.
NYCHA
had
hiring,
retaining,
Id. ¶¶ 55-57.
actual
or
training,
and/or
supervising
Accordingly, plaintiff maintains that
constructive
knowledge
of
Valentin’s
propensity to commit the acts alleged here.
II.
NYCHA’s Relevant Rules and Regulations
NYCHA
provides
its
employees
with
a
booklet
entitled
“General Regulations of Behavior” (the “regulations booklet”),
see Filiberti Decl. Ex. S, which Valentin received on May 10,
2005,
see
id.
Ex.
T.
The
regulations
booklet
provides
a
compilation of rules, presented in “simple and clear language,”
that derives from “the Human Resources Manual, the Management
Manual, standard procedures, and memos that have been issued to
employees.”
Id. Ex. S, at 3.
regulations
booklet
is
to
The intended purpose of the
assist
4
NYCHA
employees
in
“prevent[ing] any mistakes, errors in judgment or appearances
of impropriety both on and off the job.”
Id.
The regulations booklet provides a number of rules that
apply
to
employees,
apartments.”
Id.
like
Ex.
Valentin,
S,
at
9.
who
As
“perform
relevant
work
here,
in
the
regulations booklet prohibits such employees from (1) visiting
an apartment “during working hours except in the performance of
assigned duties,” (2) entering an apartment “if the occupants
are
not
properly
clothed,”
(3)
engaging
in
“inappropriate
conversation or discussion with the resident or others in the
apartment,” and (4) getting “too close to” or “touch[ing] any
Id. Ex. S, at 10-
occupant in the apartment for any reason.”
11; see also id. Ex. A, at 1-2 (identifying similar rules in
NYCHA’s Human Resources Manual).
III. NYCHA’s Previous Charges Against Valentin
Apart
from
the
incident
alleged
here,
NYCHA
levied
disciplinary charges against Valentin on three prior occasions.
See Jacobs Decl. Exs. 4-6.
On April 6, 1995, NYCHA charged
Valentin with (1) disobeying a superior’s orders to stop using
an office copy machine for personal use, (2) relying on other
employees
to
unsatisfactory
officer
found
perform
time
personal
and
Valentin
tasks,
attendance.
guilty
of
and
Id.
these
(3)
Ex.
maintaining
6.
charges.
A
trial
Id.
Accordingly, the trial officer recommended that the Members of
5
the NYCHA Board (the “Board”) suspend Valentin for five work
days.
Id.
Approximately three years later, on April 27, 1998, NYCHA
charged Valentin with (1) maintaining poor time and attendance,
(2)
being
absent
without
leave,
(3)
failing
to
report
to
supervisors as directed, (4) failing to submit a punch card in
a timely manner, and (5) failing to submit a monthly report.
Id. Ex. 5.
Once again, a trial officer found Valentin guilty
as charged.
Id.
Accordingly, the trial officer recommended
that the Board suspend Valentin for seven work days.
Id.
Finally, approximately 11 years later, on January 8, 2009,
NYCHA charged Valentin with the following alleged misconduct:
(1) operating, borrowing, removing, or using a NYCHA vehicle
without proper authorization; (2) engaging in dishonest conduct
by
submitting
failing
to
use
a
false
“Weekly
reasonable
care
Automobile
in
the
Record”;
operation,
(3)(a)
use,
and
maintenance of a NYCHA vehicle; (3)(b) leaving a work site
without
authorization;
(4)
disobeying
a
superior’s
order
to
schedule pest management at the Rangel Houses; (5) failing,
neglecting,
Rangel
or
Houses;
refusing
(6)(a)
to
complete
failing,
assigned
neglecting,
or
tasks
at
refusing
the
to
complete assigned tasks at the Douglass Houses; (6)(b) leaving
the
Douglass
Houses
without
authorization;
(7)(a)
using
abusive, profane, or offensive language or gestures directed at
6
a superior; and 7(b) engaging in dishonest conduct by making a
false
statement
to
a
superior.
Id.
Ex.
4.
After
a
disciplinary hearing, a trial officer found Valentin guilty of
charges 1, 4, 5, 6, and 7(a),3 id., and recommended that the
Board suspend Valentin for 15 work days, id.
In its review of the trial officer’s recommendation, the
Board
rejected
appropriate
to
the
demote
suggested
Valentin
suspension
and
found
instead.
Id.;
see
Filiberti Decl. Ex. O, pt. 2, at 10, 17-18.
it
also
The Board wrote:
In all, [Valentin] was found guilty of various kinds
of misconduct on eight different dates over sixteen
months.
By no means were these instances of
misconduct the only ones in [Valentin’s] tenure.
Prior to the incidents covered by these charges,
[Valentin]
received
15
counseling
memoranda.[4]
Although [Valentin] managed to avoid counseling
memoranda between 2001 and 2007, he received four
Invalid Driver’s License Notifications during that
period, a serious matter for an employee whose
position requires regular driving.
Jacobs Decl. Ex. 4.
As a result of the Board’s decision, NYCHA
demoted Valentin from the position of “Supervisor of Housing
Exterminators”
to
“Housing
Terminator”
in
Filiberti Decl. Ex. O, pt. 2, at 10, 17-18.
April
2010.
See
Approximately five
months later, Valentin allegedly sexually assaulted Carballal.
3
NYCHA withdrew charge 3 at the conclusion of its case. Jacobs Decl.
Ex. 4.
4
A counseling memorandum documents an incident of misconduct.
See
Supp. Filiberti Decl. Ex. U, at 19:15-20:3.
7
IV.
The Disciplinary Action Against Valentin
The day after the alleged sexual assault, Joseph Roeder,
the
Deputy
Director
of
the
Department,
sent
an
internal
memorandum to Robert Knapp, the Director of the Department,
requesting the “immediate suspension” of Valentin.
pt. 2, at 13.
Id. Ex. O,
In his memorandum, Roeder wrote:
[The requested suspension] is due to [Valentin’s]
arrest on 9/14/10 at Fulton Houses, during working
hours, stemming from a resident’s allegations that
Mr. Valentin fondled her daughter while in her
apartment. Due to the seriousness and sensitivity of
this allegation, Mr. Valentin’s immediate suspension
is necessary to avoid placing our residents and staff
in danger.
Knapp escalated Roeder’s request to Dawn Pinnock, the
Id.
Director of Human Resources, id. Ex. O, pt. 2, at 14, who
suspended Valentin later that day, id. Ex. O, pt. 2, at 16.
Approximately
two
months
later,
NYCHA
disciplinary proceedings against Valentin.
commenced
formal
See id. Ex. A.
In
a letter dated November 23, 2010, Pinnock alleged that Valentin
violated several provisions of NYCHA’s Human Resources Manual
by, inter alia:
“visit[ing] a resident’s apartment during working
hours while not in the performance of assigned duties
and/or without authorization or permission from [a]
supervisor”;
“ma[king] unwanted sexual advances, subtle or overt
pressure
for
sexual
favors,
and/or
unwanted
flirtations, innuendos, advances or propositions
directed towards a resident”;
8
“touch[ing] the sexual or other intimate parts of
another person for the purpose of degrading or
abusing such person; or for the purpose of gratifying
[his] sexual desire”;
“subject[ing]
another
person
without the latter’s consent”;
to
“subject[ing] a resident
forcible compulsion”; and
sexual
acting “in a manner that was prejudicial to or
discredited [NYCHA] by engaging in sexual conduct
and/or sexual misconduct during the workday.”
Id. Ex. A, at 1-2.
to
sexual
contact
contact
by
A trial officer adjudicated these charges
over the course of two non-consecutive days in December 2010
and March 2011.
Valentin
Id. Exs. B-C.
resigned
from
his
On or around June 14, 2011,
position.
Id.
Ex.
E,
at
2.
Approximately one week later, Pinnock notified Valentin that
the trial officer had found Valentin guilty of all charges,
thus warranting his dismissal.
Id. Ex. D.
DISCUSSION
I.
Summary Judgment Standard
A
motion
for
summary
judgment
is
appropriately
granted
when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
In this context, “[a] fact is material if it
might affect the outcome of the suit under the governing law,
and an issue of fact is genuine if the evidence is such that a
reasonable
jury
could
return
a
9
verdict
for
the
nonmoving
party.”
Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554,
558 (2d Cir. 2012) (internal quotation marks omitted).
When
making this determination, “the Court is required to resolve
all ambiguities and draw all permissible factual inferences in
favor of the party against whom summary judgment” is sought.
Winfield v. Trottier, 710 F.3d 49, 52 (2d Cir. 2013) (internal
quotation marks omitted).
On
a
motion
for
summary
judgment,
“[t]he
moving
party
bears the initial burden of demonstrating ‘the absence of a
genuine issue of material fact.’”
Fed. Deposit Ins. Co. v.
Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
Where
that burden is carried, the nonmoving party “must come forward
with specific evidence demonstrating the existence of a genuine
dispute of material fact.”
Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)).
The non-moving party
“must do more than simply show that there is some metaphysical
doubt as to the material facts and may not rely on conclusory
allegations
Lilly
&
or
Co.,
unsubstantiated
654
F.3d
347,
speculation.”
358
(2d
Cir.
Brown
2011)
v.
Eli
(internal
quotation marks and citations omitted).
II.
Analysis
As noted supra, plaintiff maintains that NYCHA is liable
for
Valentin’s
alleged
misconduct
10
pursuant
to
Monell
and
a
state
law
plaintiff
theory
alleges
of
respondeat
that
NYCHA
is
superior.
In
independently
addition,
liable
to
Carballal for negligently hiring, retaining, training, and/or
supervising Valentin.
A.
We address these claims in turn.
NYCHA Is Not Liable Under Section 1983 for Valentin’s
Alleged Misconduct
A municipality cannot be held liable under section 1983
“on a respondeat superior basis for the tort of its employee.”
Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012)
(citing Monell, 436 U.S. at 691); see also Los Angeles County
v. Humphries, -- U.S. --, 131 S.Ct. 447, 452 (2010) (stating
that a municipality will not be held liable under section 1983
“solely because it employs a tortfeasor” (internal quotation
marks
omitted)).
section
1983
only
Rather,
where
a
municipality
“‘the
is
liable
under
body
itself
governmental
‘subjects’ a person to a deprivation of rights or ‘causes’ a
person ‘to be subjected’ to such deprivation.’”
Cash v. County
of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Connick v.
Thompson, -- U.S. --, 131 S.Ct. 1350, 1359 (2011)).
To prevail on a claim of municipal liability, a plaintiff
must satisfy a two-prong test.
Johnson v. City of New York,
No. 06 Civ. 9426 (GBD), 2011 WL 666161, at *3 (S.D.N.Y. Feb.
15, 2011).
First, the plaintiff “must ‘prove the existence’”
of a governmental custom, policy, or usage, demonstrating that
11
the municipality took “‘some action’” beyond merely employing
the alleged tortfeasor.
Id. (quoting Vippolis v. Village of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)); see also Jones,
691
F.3d
at
80.
Second,
the
“plaintiff
must
‘establish
a
causal connection’” between the custom, policy, or usage and
the
alleged
rights.
deprivation
of
the
plaintiff’s
constitutional
Johnson, 2011 WL 666161, at *3 (quoting Vippolis, 768
F.2d at 44); see also Cash, 654 F.3d at 333 (stating that “a
plaintiff
conduct,
must
the
demonstrate
municipality
that,
was
the
through
moving
its
force
deliberate
behind
the
alleged injury” (internal quotation marks omitted)).
A plaintiff may satisfy the “custom, policy, or usage”
requirement in one of four ways.
See Robinson v. Town of Kent,
835 F. Supp. 2d 1, 8 (S.D.N.Y. 2011).
The plaintiff may offer
evidence of (1) “a formal policy which is officially endorsed
by the municipality,” (2) “actions taken or decisions made by
municipal officials with final decision-making authority,” (3)
“a practice so persistent and widespread that it constitutes a
custom of which constructive knowledge can be implied on the
part
of
policymaking
officials,”
or
(4)
“a
failure
by
policymakers to properly train or supervise their subordinates,
amounting to ‘deliberate indifference’ to the rights of those
who
come
in
contact
with
the
12
municipal
employees.”
Id.
(internal quotation marks omitted); see also Brandon v. City of
New
York,
705
F.
Supp.
2d
261,
276-77
(S.D.N.Y.
2010)
municipality
liable
(collecting authority).
Where
under
a
a
plaintiff
theory
of
seeks
to
deliberate
hold
a
indifference,
the
“operative
inquiry” is whether “the policymaker’s inaction was the result
Cash, 654 F.3d
of conscious choice and not mere negligence.”
at
334
(internal
quotation
marks
omitted).
To
establish
deliberate indifference, the plaintiff must demonstrate, inter
alia, that the policymaker knew “to a moral certainty” that its
employee would “confront a given situation.”
Okin v. Vill. of
Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 440 (2d Cir.
2009) (internal quotation marks omitted); see also Amnesty Am.
v. Town of West Hartford, 361 F.3d 113, 127 (2d Cir. 2004)
(stating that a plaintiff must “show[] that the need for more
or
better
supervision
to
protect
against
constitutional
violations was obvious” (internal quotation marks omitted)).
As
the
Court
of
Appeals
has
cautioned,
“‘deliberate
indifference’ is ‘a stringent standard of fault.’”
Cash, 654
F.3d at 334 (quoting Connick, 131 S.Ct. at 1360).
In this case, we find that plaintiff’s Monell claim falls
woefully
short.
Even
assuming,
13
arguendo,
that
Valentin
violated
Carballal’s
constitutional
rights,5
plaintiff
has
nonetheless failed to raise a triable issue of fact as to any
custom, policy, or usage that was causally responsible for the
injuries alleged.
As an initial matter, it is undisputed that
NYCHA’s written policies prohibited Valentin’s conduct.
Filiberti Decl. Exs. A, S.
See
Under the regulations booklet,
Valentin was not permitted to enter plaintiff’s apartment, let
alone
to
touch
Carballal.6
(prohibiting
NYCHA
entering
apartment
an
See,
employees
when
from,
an
e.g.,
among
occupant
id.
Ex.
other
is
S,
at
things,
“not
10
(1)
properly
clothed” and (2) touching an occupant “for any reason”); see
also id. Ex. A (citing similar prohibitions in NYCHA’s Human
Resources
jury
Manual).
simply
could
Under
not
these
conclude
circumstances,
that
NYCHA’s
a
reasonable
policies
or
practices were the “moving force” behind the alleged sexual
assault.
See, e.g., In re Murphy, 482 Fed. App’x 624, 626 (2d
Cir. 2012) (holding that a municipality was not vicariously
liable under section 1983 when its “policies and procedures
5
See Okin, 577 F.3d at 439 (“Monell does not provide a separate cause
of action for the failure by the government to train its employees; it
extends liability to a municipal organization where that organization’s
failure to train, or the policies or customs that it has sanctioned, led to
an
independent
constitutional
violation.”
(internal
quotation
marks
omitted)).
6
Nonetheless, plaintiff requests additional discovery to determine
“whether an affirmative NYCHA policy exists that caused [Carballal] to be
sexually assaulted.”
Pl.’s Mem. of Law in Opp’n to Def. NYCHA’s Mot. for
Summ. J. (hereinafter “Pl.’s Br.”) 19.
In light of the various written
policies to the contrary, plaintiff’s request borders on the frivolous.
14
actually prohibit[ed]” the alleged misconduct); Tuminello v.
Doe,
No.
10
Civ.
1950
(DRH)(ARL),
2013
WL
1845532,
at
*3
(E.D.N.Y. Apr. 30, 2013) (same).
Nonetheless,
plaintiff
argues
that
there
is
a
genuine
dispute as to whether “NYCHA was deliberately indifferent by
failing to properly discipline and supervise” Valentin.
Pl.’s
Br.
cites
21.
In
Valentin’s
support
“extensive
“Valentin
should
opportunity
[to]
have
of
this
contention,
disciplinary
been
sexually
history”
fired
assault”
long
plaintiff
and
before
Carballal.
argues
he
had
Letter
that
an
from
Stuart E. Jacobs, Esq., to Court 2 (May 31, 2013) (hereinafter
“Jacobs Letter”); see also Pl.’s Br. 20.
However, the question
is not whether NYCHA should have terminated Valentin for taking
a car without authorization, using profanity in front of a
supervisor, or showing up late for work.
See Cash, 654 F.3d at
334 (emphasizing that “mere negligence” does not give rise to
Monell
liability
(internal
quotation
marks
omitted));
Cf.
Sassaman v. Gamache, 566 F.3d 307, 314 (2d Cir. 2009) (stating
that
“it
is
not
the
role
of
federal
correctness of employment decisions”).
whether
a
reasonable
jury
would
find
courts
to
review
the
Rather, the question is
that
NYCHA
exhibited
deliberate indifference to constitutional violations “similar”
to those alleged here.
Connick, 131 S.Ct. at 1360.
15
On the record before the Court, the answer is clearly no.
Plaintiff
has
not
proffered
any
evidence
demonstrating
that
NYCHA had actual or constructive knowledge of any proclivity on
Valentin’s part for sexually assaultive behavior.7
To be sure,
NYCHA levied formal disciplinary charges against Valentin on
three prior occasions, see Jacobs Decl. Exs. 4-6, and issued 15
counseling memoranda during the course of his 23-year career,
see id. Ex. 4.
disciplinary
However, the conduct that gave rise to those
actions
was
wholly
7
dissimilar
to
the
incident
Moreover, further discovery on this issue would be futile.
In
response to plaintiff’s discovery demands, NYCHA produced (1) all relevant,
non-privileged documents from Valentin’s employment file and (2) Valentin’s
counseling memoranda, which we reviewed in camera. See Letter from Joanne
Filiberti, Esq., to Court 1 (June 18, 2013); see also Letter from Joanne
Filiberti, Esq., to Court 1 (June 25, 2013) (confirming that NYCHA has
conducted “a complete search of all locations that might contain documents
responsive to discovery demands”).
Despite the exhaustive nature of these disclosures, plaintiff argues
that additional discovery is required.
However, virtually all of the
requested discovery goes to the irrelevant question of whether NYCHA should
have fired Valentin for misconduct of a wholly dissimilar nature that in no
way foreshadowed the acts alleged here.
See, e.g., Jacobs Letter 5
(requesting additional deposition discovery to determine whether NYCHA could
have “tracked” Valentin’s whereabouts more closely).
In any event, much of the discovery plaintiff seeks could not, as a
matter of law, create a genuine dispute as to any material fact.
For
instance, plaintiff requests “all records related to . . . unfounded and
unsubstantiated allegations” against Valentin, which records were allegedly
removed from Valentin’s employment file.
Id. 4.
However, because these
records, if any, involve only unfounded and unsubstantiated allegations,
they
are
inherently
speculative
and,
thus,
inappropriate
for
our
consideration on a motion for summary judgment. DiStiso v. Cook, 691 F.3d
226, 230 (2d Cir. 2012).
Accordingly, we conclude that the record is complete with respect to
the question of NYCHA’s Monell liability. Although we offered plaintiff an
opportunity to submit a legal memorandum explaining why further discovery
was warranted, plaintiff declined our invitation and focused its memorandum
on the remaining state law claims instead. See Pl.’s Supplemental Mem. of
Law in Further Opp’n to Def. NYCHA’s Mot. for Summ. J. (hereinafter “Pl.’s
Supp. Br.”). As explained infra, additional discovery is not justified with
respect to these claims either. See infra Section II(B)-(C).
16
alleged here.8
Valentin
ever
See id. Exs. 4-6.
entered
a
There is no indication that
tenant’s
apartment
Id.9
pretenses prior to September 14, 2010.
under
false
Nor is there any
evidence that Valentin had inappropriate contact with a tenant
other than Carballal.
Id.
To demonstrate otherwise, plaintiff alleges that Howard
Korman, a NYCHA attorney, told her that the alleged sexual
assault
“was
not
the
something like this.”
first
time
.
.
.
Valentin
Jacobs Decl. Ex. 2 ¶ 7.
had
done
However, when
questioned about the context and content of this conversation
during his deposition, Korman stated that he described Valentin
as a “bad guy” who had “been in trouble before” solely to
encourage
plaintiff
to
testify
at
Valentin’s
disciplinary
hearing and to reassure plaintiff that NYCHA would address the
alleged sexual assault.
Supp. Filiberti Decl. Ex. U, at 50:24-
1:3; see also id. Ex. U, at 51:24-52:10 (“That was something
that I said essentially to try and make sure she came down for
the hearing, you know . . . . I wanted to try to let her know
that I was on her side and that, you know, we were going to
8
By letter dated May 9, 2013, we notified plaintiff’s counsel that the
counseling memoranda “contain[ed] absolutely no information that [wa]s
relevant to this action.” Letter from Court to Stuart E. Jacobs, Esq., and
Joanne Filiberti, Esq., 1 (May 9, 2013).
9
See also Supp. Filiberti Decl. Ex. U, at 56:5-12 (Q: “Were there any
instances of discipline noted in Mr. Valentin’s record that he had, on
previous occasion, gone to people’s apartments to allegedly exterminate at
times not listed on the work order?”
A:
“I’m not aware of such
allegations, such prior allegations.”).
17
bring
charges
Contrary
that
to
and
we
were
plaintiff’s
Valentin
had
gonna
seek
to
fire
this
guy.”).
did
not
indicate
suggestion,
engaged
ever
Korman
misconduct
in
similar to the incident alleged here.
of
a
nature
See id. Ex. U, at 51:10-
13 (Korman testifying that he was referring to Valentin’s prior
disciplinary hearing (i.e., the hearing involving the use of a
NYCHA vehicle without authorization) when he described Valentin
as
a
“bad
guy”).
The
accuracy
of
Korman’s
testimony
is
corroborated by NYCHA’s additional searches of all locations
that might contain record of Valentin’s previous disciplinary
charges.
See Letter from Joanne Filiberti, Esq., to Court 1
(June 25, 2013).
Because those searches did not demonstrate
the existence of any relevant misconduct, see id., Korman’s
conversation with plaintiff does not raise a genuine dispute as
to
NYCHA’s
deliberate
indifference
to
constitutional
deprivations similar to those alleged here.
We are left, then, with the isolated occurrence of the
alleged sexual assault.
As unfortunate as that event may be, a
“‘single incident’” cannot form the basis of a municipality’s
liability under section 1983, particularly when the incident
was entirely unforeseeable at the time that it occurred.
K.D.
ex rel. Duncan v. White Plains Sch. Dist., -- F. Supp. 2d --,
No. 11 Civ. 6756 (ER), 2013 WL 440556, at *4 (S.D.N.Y. Feb. 5,
2013) (quoting DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998));
18
see also Jones, 691 F.3d at 81 (“[I]solated acts of excessive
force by non-policymaking municipal employees are generally not
sufficient to demonstrate a municipal custom, policy, or usage
that would justify municipal liability.”).
Any holding to the
contrary would approach the responsdeat superior theory that
Monell explicitly rejects.
Monell, 436 at 691; see also Jeffes
v.
61
Barnes,
208
F.3d
49,
(2d
“[b]ecause respondeat superior
Cir.
2000)
(noting
that,
liability is not permissible”
under section 1983, “the courts must apply rigorous standards
of
culpability
and
causation
to
ensure
that
the
indirect-
causation theory not result in the municipality’s being held
liable
solely
quotation
marks
for
and
the
actions
alteration
of
its
employee”
omitted)).
(internal
Accordingly,
we
conclude that plaintiff’s Monell claim fails as a matter of
law.10
10
Because we have granted NYCHA’s motion for summary judgment as to the
Monell claim, NYCHA urges us to dismiss the remaining state law claims
pursuant to 28 U.S.C. 1367(c)(3) (“section 1367(c)(3)”). However, plaintiff
has also asserted a federal claim against Valentin.
See Compl. ¶¶ 43-44.
In this circumstance, section 1367(c)(3) has no applicability.
See, e.g.,
16 J. Moore et al., Moore’s Federal Practice § 106.66[1], p. 106-94 (3d Ed.
2013) (stating that a court may only invoke section 1367(c)(3) when it has
dismissed “all claims” over which it maintains original jurisdiction, “not
just those claims asserted against a particular defendant”).
Moreover, the fact that Valentin has yet to appear in this action does
not alter our conclusion. Even if a default judgment were entered against
Valentin, such judgment would not constitute a “dismissal” of the federal
claim that plaintiff asserts against him.
See, e.g., Morin v. Empiyah &
Co., LLC, 389 F. Supp. 2d 506, 511 (S.D.N.Y. 2005). Accordingly, we retain
jurisdiction over plaintiff’s state law claims, which we now address for
their sufficiency.
19
B.
NYCHA
Cannot
Be
Held
Liable
for
the
Alleged
Misconduct Under a State Law Theory of Respondeat
Superior
Under New York law, an employer is vicariously liable for
the
torts
of
its
employee
only
where
the
tortious
act
was
foreseeable and committed within the scope of the tortfeasor’s
employment.
Doe v. Guthrie Clinic, Ltd., 710 F.3d 492, 495 (2d
Cir. 2013) (citing Horvath v. L & B Gardens, Inc., 932 N.Y.S.2d
184, 185 (N.Y. App. Div. 2011)).
“An employee’s actions fall
within the scope of employment where the purpose in performing
such actions is to further the employer’s interest, or to carry
out
duties
incumbent
employer’s business.”
upon
the
employee
in
furthering
the
Pinto v. Tenenbaum, 963 N.Y.S.2d 699,
701 (N.Y. App. Div. 2013) (internal quotation marks omitted).
In contrast, actions taken for purely “personal motives” cannot
give rise to respondeat superior
liability.
Swarna v. Al-
Awadi, 622 F.3d 123, 144 (2d Cir. 2010) (internal quotation
marks
omitted);
accord
Pinto,
963
N.Y.S.2d
at
701.
The
question of whether a particular action falls within the scope
of employment is typically reserved for the jury.
Romero v.
City of New York, 839 F. Supp. 2d 588, 629 (E.D.N.Y. 2012)
(citing Girden v. Sandals Int’l, 262 F.3d 195, 205 (2d Cir.
2001)).
In certain instances, however, a court may resolve
this issue as a matter of law.
Id. (citing Girden, 262 F.3d at
205).
20
Such is the case here.
courts
have
consistently
As plaintiff concedes, “New York
held
that
sexual
misconduct
and
related tortious behavior arise from personal motives and do
not further an employer’s business, even when committed within
the employment context.”
Pl.’s Supp. Br. 8.11
Here, it is
undisputed that NYCHA prohibited the alleged sexual assault,
see Filiberti Decl. Ex. S, at 9, and took formal disciplinary
action
after
its
occurrence,
see
id.
Ex.
A.
Under
these
circumstances, a rational jury could not conclude that Valentin
was doing his “master’s work” when he caused the alleged harm.12
See, e.g., Doe v. City of New York, No. 09 Civ. 9895 (SAS),
2013 WL 796014, at *5 & n.64 (S.D.N.Y. Mar. 4, 2013) (finding
that police officers were not acting within the scope of their
employment
when
they
committed
11
rape
and
sexual
assault,
See also Swarna, 622 F.3d at 144-45 (collecting cases); N.X. v.
Cabrini Med. Ctr., 765 N.E.2d 844, 847 (N.Y. 2002) (holding that sexual
assault “is a clear departure from the scope of employment, having been
committed for wholly personal motives”).
12
Plaintiff maintains that additional discovery is needed to determine
whether
the
“purpose”
of
the
alleged
sexual
assault
was
somehow
“intertwined” with Valentin’s employment. Pl.’s Supp. Br. 4. In support of
this contention, plaintiff cites -- but does not identify -- recent
“scientific research” purportedly establishing that sexual assault is
motivated not by “the assailant’s personal and sexual” desires, but rather
by his “need to demonstrate his position of power and authority over a more
vulnerable female.” Id. 7. Plaintiff contends that expert discovery would
demonstrate that Valentin sexually assaulted Carballal to assert his power
over her “as an exterminator with access to her apartment.” Id. 4.
The speculative nature of this argument aside, we find that
plaintiff’s theory is entirely self-defeating.
Even assuming, arguendo,
that Valentin sexually assaulted Carballal “to exhibit his position of power
and authority,” id. 10, plaintiff does not explain, let alone substantiate,
how this purported purpose advanced NYCHA’s interests. To the contrary, it
would seem all the more clear that Valentin committed the alleged sexual
assault for wholly personal and narcissistic ends.
21
resulting in a conviction of official misconduct).
To the
contrary,
“wholly
it
personal”
is
clear
motives,
that
thus
Valentin
rendering
was
acting
plaintiff’s
superior claim untenable as a matter of law.
at
847;
see
also
Osvaldo
D.
v.
on
Rector
respondeat
N.X., 765 N.E.2d
Church
Wardens
&
Vestrymen of the Parish of Trinity Church, 834 N.Y.S.2d 94, 94
(N.Y. App. Div. 2007) (upholding summary judgment in favor of a
church
whose
employee
committed
an
alleged
sexual
assault);
Woods v. CVS, No. 13 Civ. 611 (GBD), 2013 WL 1736587, at *3
(S.D.N.Y. Apr. 19, 2013) (granting summary judgment in favor of
a
pharmacy
whose
employee
allegedly
sexually
assaulted
the
plaintiff).
C.
NYCHA Cannot Be Held Liable for the Negligent Hiring,
Retention, Training, or Supervision of Valentin
To impose liability on an employer for negligent hiring,
retention,
training,
or
supervision,
a
plaintiff
must
show,
inter alia, “that the employer knew or should have known of the
employee’s propensity for the conduct which caused the injury
prior to the injury’s occurrence.”
Ehrens v. Lutheran Church,
385 F.3d 232, 235 (2d Cir. 2004) (internal quotation marks
omitted); see also Brandy B. v. Eden Cent. Sch. Dist., 934
N.E.2d 304, 307 (N.Y. 2010) (stating that a claim for negligent
supervision
cannot
succeed
“without
evidence
of
any
prior
conduct similar to the unanticipated injury-causing act”).
22
As
supra,
expl
plaintiff
has
not
that NYCHA had actual
demonstrat
or
sexual
Accordingly,
plaintiff
See supra Section I I (A) .
should
have
known,
evidence
knowledge
or construct
as to whether NYCHA
has failed to raise a triable issue of
knew,
any
to commit an act
of any propensity on Valentin's
aggression.
offered
that
was
Valent
Uunfit"
to
exterminate apartments on account of his alleged proclivity for
sexual assault.
Univ.,
633
negligent
F.3d 81,
hiring,
fore
Ci
94
(2d Cir.
retention,
2011).
training,
Is as a matter of law.
New York,
--~~---------------
843
F.
Supp.
2d
Plaintiff's
and/or
See
e.
446,
464
aim of
supervision
.,
v .
(S.D.N.Y.
2012)
(collecting cases) .
CONCLUSION
For
the
foregoing
reasons,
NYCHA's
motion
for
summary
judgment (docket no. 11) is granted.
Dated:
New York, New York
July 9, 2013
UNITED STATES DISTRICT JUDGE
23
Copies of the foregoing Memorandum and Order have been mailed
on this date to the
lowing:
Attorneys for Plaintiff
Stuart E. Jacobs, Esq.
David M. Hazan, Esq.
Jacobs & Hazan, LLP
11 Park Place, 10th Floor
New York, NY 10007
Attorney for Defendant NYCHA
Joanne Filiberti, Esq.
Leahey & Johnson, P.C.
120 Wall Street, Suite 2220
New York, NY 10005
24
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