Cater v. State Of New York et al

Filing 63

OPINION re: 39 MOTION to Dismiss the Amended Complaint filed by Empire State Development Corporation. Based upon the conclusions set forth below, the motion is granted and the Amended Complaint is dismissed. Because the Amended Compl aint fails to allege cognizable causes of action against ESD, as set forth above, Plaintiff's First, Fifth, Sixth, Seventh, and Eighth Causes of Action against ESD are dismissed, with prejudice. It is so ordered. (Signed by Judge Robert W. Sweet on 2/4/2019) (ne) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------x
LISA MARIE CATER,
Plaintiff,
-against-

17 Civ. 9032
OPINION

THE STATE OF NEW YORK, THE EMPIRE
STATE DEVELOPMENT CORPORATION,
GOVERNOR ANDREW CUOMO
(In His Individual Capacity),
and WILLIAM BALLARD HOYT a/k/a
SAMUEL B. HOYT, III (In His
Individual Capacity),
Defendants.

-------------------------------------x
APPEARANCES:
Attorneys for Plaintiff
DEREK SMITH LAW GROUP, PLLC
One Penn Plaza, Suite 4905
New York, NY 10119
By:
Paul Liggieri, Esq.
Attorneys for Defendants
OFFICE OF N.Y.S. ATTORNEY GENERAL
120 Broadway, 14 t h Floor
New York, NY 10271
By:
John M. Schwartz, Esq.

Sweet, D . J .

Defendant New York State Urban Development
Corporation , doing business as Empire State Development ("ESD")
has moved pursuant to Fed . R. Civ. P. 12 (b) (1) and 12 (b) (6) to
dismiss the Amended Complaint of plaintiff Lisa Marie Cate
(" Cater" or the "Plaintiff ' ). Based upon the conc l usions set
forth below , the motion is granted and the Amended Complaint is
dismissed .

Prior Proceedings

Cater filed her Complaint on November 18 , 2017 and her
Amended Complaint on December 5, 2017 alleging sexual harassment
and violation of federal civil rights law and state employment
law against defendants , The State of New York (the "State " ) ,
Governor Andrew Cuomo (the "Governor") , ESD , William Ballard
Hoyt ("Hoyt " or "Defendant Hoyt") .

By opinion of June 21, 2018

(Dkt. 54) , the Amended

Compla i nt against the State and the Governor was dismissed .

1

The instant motion by ESD was heard and marked fully
submitted on July 11, 2018.

The Amended Complaint

The Plaintiff has alleged violations of 42 U.S.C.
§1983, 1985, 1986, violations of the New York State Executive
Law based on the actions of the State, ESD, The Governor and
Defendant Hoyt. The Amended Complaint contains the following
allegations:

Plaintiff was hired with the NYS Department of Motor
Vehicles ("OMV") in or around February of 2016.

(Am. Cplt

<JI

54).

Plaintiff was specifically hired through a process otherwise
known as "Management Confidential." Id. at

<JI

56. Management

Confidential is used as a vehicle to dispense patronage jobs to
friends of the Governor and other NYS politicians.
<JI

(Am. Cplt.

56). Defendant Hoyt, then Regional President of ESD used his

authority at ESD and his relationship with Governor Cuomo, in
order to leverage a job for the Plaintiff.

(see generally Am.

Cplt).

Throughout the Plaintiff's employment with Defendants,
it is alleged that Defendant Hoyt subjected the Plaintiff to
2

.

--·---------------

sexual harassment, discrimination as well as a severe and/or
pervasive hostile work environment. The Amended Complaint
alleges that ESD, Defendant Hoyt, and other members of the State
used their badge of authority and acted under the color of law.

In or around July of 2016, the Plaintiff began her
attempts to contact Defendant Cuomo.

(Am. Cpl t

':!I 77) .

Plaintiff's correspondence to the Governor included but was not
limited to correspondence by email, telephone and text message.
(Am. Cplt ':!I 77-80, 103-116). After unsuccessfully trying to
contact the Governor himself, Plaintiff was referred to The NYS
Join Commission on Public Ethics

("JCOPE").

(Am. Cplt ':!1123).

Defendant Hoyt, using his authority as a powerful public figure
at Empire State Development, threatened the Plaintiff as he had
many times before and advised her that JCOPE would never help
her because he was "too powerful" and in "direct contact with
the Governor." (Am. Cplt. ':!1127).

The Applicable Standard

Rule 12(b) (6)

On a Rule 12 (b) (6) motion to dismiss, all factual
allegations in the complaint are accepted as true and all
3

inferences are drawn in favor of the pleader. Mills v. Polar
Molecular Corp ., 12 F.3d 1170, 1174

(2d Cir. 1993). A complaint

must contain "suffi cient factual matter, accepted as true, to
'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)

(quoting Bell Atl.

Corp. v . Twombly, 550 U.S. 544, 555 (2007))

(emphasis added). A

claim is facially plausible when "the plaintiff pleads factual
content that allows the court to draw the reas onab le inference
that the defendant is liable for the misconduct alleged." Iqbal,
556 U.S. at 663 (quoting Twombly, 550 U.S. at 556). In other
words, the factual allegations must "possess enough heft to show
that the pleader is entitled to relief." Twombly, 550 U.S. at
557

(interna l quotation marks omitted ).

While " a plaintiff may plead facts alleged upon
information and belief 'where the belief is based on factual
information that makes the inference of culpability plausible,'
such allegations must be 'a ccompanied by a statement of the
facts upon which the belief is founded.'" Munoz-Nagel v. Guess,
Inc., No. 12 Civ. 1312 (ER), 2013 WL 1809772, at *3 (S.D.N.Y.
Apr. 30, 20 13)

(quoting Arista Records, LLC v. Doe 3, 604 F.3d

110, 120 (2d Cir . 2010) ); Prince v . Madison Square Garden,
F. Supp. 2d 372, 384

427

(S.D.N.Y. 2006); Williams v. Calderoni, 11

Ci v . 3020 (CM), 20 12 WL 691832, at *7

4

(S.D.N.Y. Mar. 1, 20 1 2)) .

The pleadings, however, "must contain something more than
a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action." Twombly, 550 U.S. at 555
(citation and internal quotation omitted).

The§ 1983 Claim is Dismissed

Plaintiff's First Cause of Action seeks relief against
ESD under Section 1983 on the sole basis that ESD employed Hoyt.
The Supreme Court has held that a government entity cannot be
liable under§ 1983 on a respondeat superior theory. In the
Section 1983 context, a government entity "cannot be held liable
solely because it employs a tortfeasor." Monell v . Dep't of Soc.
Servs. of City of N.Y.,

436 U.S. 658, 691 (1978) (government

entity "cannot be held be held liable under§ 1983 on a
respondeat superior theory.").

To state a plausible Section 1983 claim against a
government entity , a plaintiff must do more than allege the
defendant employed the alleged wrongdoer; she must prove "that a
municipal policy of some nature caused a constitutional tort."
Roe v. City of Waterbury , 542 F.3d 31 , 36 (2d Cir . 2008) .

5

But because the Plaintiff does not allege any facts to
establish that she was an ESD employee or had any other
relationship with ESD, respondeat superior is the only
discernible theory under which the Amended Complaint could state
a§ 1 983 claim against ESD. The relevant factual allegations
relate solely to Hoyt's position at ESD. The Plaintiff alleges:
"Defendant Hoyt .

[was] Senior Vice President for Regional

Economic Development at the Empire State Development
Corporation. " Am. Compl.

<JI

27 .

The Amended Complaint alleges: "Defendant Hoyt
had the power as Regional President of the Empire State
Development Corporation to hire, fire[,]
Cater" at the OMV . Am . Comp 1.

<JI

and supervise Plaintiff

61 ( emphasis added) .

Such allegations do not establish an employment
relationship between plaintiff and ESD. See Moore v. City of
N . Y ., 2010 WL 742981 , at *5

(S.D.N.Y. Mar. 2, 2010)

(dismissing

plaintiff's§ 1983 claim against the city where plaintiff "was
an employee of the DOE and [did] not claim that she was ever
employed by the City or that the City took any action that
affected her employment ," noting the City and the DOE were
"distinct governmental entities").

6

Because the Supreme Cour t has held that respondeat
super ior does not support a Section 19 83 claim against a
government entity , the Plaintiff's First Cause of Action against
ESD is dismissed.

The Monell Claim is Dismissed

To state a c laim against a government entity under a
theory of Monell liabilit y , a plaintiff must allege an " official
policy" by the entity. This includes: "(l) actions taken under
color of law; ·(2) deprivation of a constitutional or statutory
right;

( 3) causation ;

( 4) damages; and ( 5) that an official

policy of the municipality caused the constitutional injury."
Roe v . City of Waterbury,

542 F.3d 31, 36 (2d Cir. 2008) . A

plaintiff satisfies the "official policy" element only where " a
'muni cipal policy of some nature caused a constitutional tort.'"
Roe, 542 F.3d at 36 (quoting Monell,

436 U.S. at 691). The

government agent's actions must implement, rather than merely
frustrate, a government policy. Id. at 3 7. The plaintiff must
allege that "through its deliberate conduct , the municipality
was the 'moving force' behind the alleged injury." Id.

7

The Amended Complaint does not allege that ESD had an
official policy that caused a constitutional injury to
Plaintiff. The only allegations referencing a policy, practice,
or a custom of ESD appear in the paragraphs recounting the
elements of plaintiff ' s Fifth Cause of Action . Those allegations
fall into two categories :

(1) recitation of legal phrases and

elements of a Monell claim; and (2) conc lus ory statements
unsupported by factual allegations.

The Plaintiff has alleged ESD had a policy through
which "supervisors such as Defendant Hoyt" were permitted to,
among other things, "unlawfully retaliate and create a hostile
work environment against Plaintiff." Am. Compl. 1 183. However,
Plaintiff does not allege Hoyt was her supervisor, or that she
was employed by ESD . Plaintiff claims ESD used these alleged
policies, customs , and practices "as a means to suppress
complaints made on a protected basis ." Id. 1 184. But Plaintiff
does not allege she complained to ESD about Hoyt, making her
allegation of a policy to "suppress complaints" irrelevant to
her Section 1983 claim.

The Amended Complaint's remaining allegations with
respect to Monell are conclusory and inadequate. The Plaintiff
alleges that "[n]otwithstanding knowledge of such an unlawful de

8

facto unwritten policy," ESD "ha[s] not taken steps to terminate
this policy" and "do[es] not properly train employees" in
discrimination and retaliation. Am. Comp.

~

186. However, the

Amended Complaint does not allege facts to support a plausible
c laim that an ESD "policy" for handling employment- or
harassment-related complaints caused plaintiff's alleged
injuries. See Moore, 2010 WL 742981, at *6 ("Allegations that a
defendant acted pursuant to a 'po li cy ' or 'cust om ' without any
facts suggesting the policy's existence, are plainly
insufficient [to support a Monell claim].")

(quotation marks and

citation omitted).

In addition , only government officials "who have
'final policymaking authority' may by their actions subject the
government to§ 1983 liability ." City of St. Louis v.
Praprotnik,

485 U.S. 112, 123 (1988)

(quotation marks and

citation omitted). Thus, a plaintiff "must show that the
official had final policymaking power." Roe, 542 F.3d at 37. It
is not enough that the official had some final policymaking
authority; rather, the "critical inquiry" is "whether the
government offic i al is a final policymaker with respect to the
particular conduct challenged in the lawsuit." Id. at 37. "The
critical characteristic of final policymakers when employment is
at issue is whether the .

official has the authority to
9

formulate the rules governing personnel decisions rather than
the authority to make decisions pursuant to those rules -

e.g.,

the hiring and firing of subordinates." Chin v. N.Y. City Hous.
Auth ., 575 F. Supp. 2d 554, 562

(S.D .N. Y. 2008).

The Plaintiff offers no factual allegations -

other

than reciting Hoyt's former position at ESD - to suggest Hoyt
had final policymaking authority of any kind related to human
resources, personnel policies, or handling harassment complaints
at ESD. See Am. Compl.

~~

27, 61 .

Any policymaking authority Hoyt might have had
relating to economic development in Western New York, or any of
ESD's other regional initiatives, does not support Plaintiff's
Monell claim . The conduct alleged in the Amended Complaint

relates to sexual harassment and employment discrimination.
Thus , to plead a Monell claim against ESD based on Defendant
Hoyt's conduct , Plaintiff would need to allege that Defendant
Hoyt had final policymaking authority with respect to ESD's
policy for handling sexual harassment and discrimination
complaints, or for making personnel decisions. The Amended
Complaint contains no such allegations.

10

The Plaintiff has pled no facts to suggest that
Defendant Hoyt had authority over creat in g personnel policy at
ESD. This deficiency requires dismissal. See Santos v. N.Y.
City, 847 F. Supp . 2d 573, 577

(S .D.N.Y. 2012)

(dismissing

Monell claim where plaintiff "plead[ed] no facts to suggest that
[the municipal official] was a municipal policymaker"). As this
Court held, the "critical characteristic" of a final policymaker
when employment is at issue is a "municipal official [who] has
authority to formulate the rules governing personnel decisions."
See Chin v. N.Y. City Haus. Auth., 575 F. Supp. 2d 554, 562
(S .D. N.Y . 2008) . The ability to influence employment decisions,
if it exists, is far different from authority to "f ormulate the
rules governing personnel decisions." Id.; see Hurdle v. Ed. of
Educ . of City of N.Y ., 113 F . App'x 423, 425-26 (2d Cir . 2004) .

Plaintiff has contended that Defendant Hoyt was a
final policymaker because he worked at ESD, whose mission is to
facilitate business growth and job creation, and because he
assisted with her job placement at the Department of Motor
Vehicles ("OMV") . See Pl.'s Mem. of Law in Opp 'n to Def. Empire
State Dev.'s Mot. to Dismiss, dated June 15, 2018

("Pl .'s

Opp 'n" ) , at 11. However, neither Defendant Hoyt's assistance in
getting plaintiff a job at the OMV, nor ESD's mission, is
relevant to the question set forth in Chin that is critical to
11

analyzing a Monell claim: whether Defendant Hoyt had final
authority for employment policies at ESD.

The Plaintiff urges the Court to follow Fifth Circuit
authority specifically rejected by the Second Circuit. See Pl.'s
Opp'n, at 13-14; Roe v. City of Waterbury,
(2d Cir. 2008)

542 F.3d 31, 40-41

("[W]e decline to follow the Fifth Circuit's

reasoning with respect to municipal liability under§ 1983.").
In addition, the holding in each cited case depended on the fact
that "in Texas, the county sheriff is the county's final
policymaker in the area of law enforcement." See Bennett v.
Pippin, 74 F.3d 578, 586 (5 t h Cir. 1996); Turner v. Upton Cnty.,
Tex.,

915 F.2d 133, 136 (5 t h Cir. 1990). Even if this Circuit had

adopted the Fifth Circuit's approach, Plaintiff would still have
to establish that Defendant Hoyt was a final policymaker, which
she has not done.

Because the Plaintiff fails to allege any facts
suggesting Defendant Hoyt had authority to create personnel
policy for ESD, she cannot allege that Defendant Hoyt was a
final policymaker, and her Section 1983 claim against ESD is
dismissed.

12

The§ 1985 Claim is Dismissed

Plaintiff contends that her Section 1985 claim should
survive because it is not an employment discrimination claim
brought under Title VII. Pl.'s Opp'n, at 14-16. However, this
Court has held that Section 1985 cannot serve as a vehicle to
redress Title VII claims or other employment-related claims
"covered or closely related to th[ose] covered by Title VII."
Ladson v. Ulltra E. Parking Corp.,

853 F. Supp. 699, 704

(S.D.N.Y. 1994). The Plaintiff has referred to her claims as
employment discrimination claims and the Amended Complaint is
full of phrases key to Title VII claims, including hostile work
environment and retaliation. See Pl.'s Opp'n, at 15-16; Arn.
Compl. 11 151, 154, 155. Also, she alleges a claim against ESD
under a NYHRL provision that is "analytically identical" to a
Title VII claim. See Arn. Compl. 11 199-201; Salamon v. Our Lady
of Victory Hosp.,

514 F.3d 217, 226 n.9

(2d Cir. 2008). Given

the substantive similarity of Plaintiff's employment-based
claims to those under Title VII, Plaintiff may not maintain
civil rights conspiracy claims based on those allegations. See
Great Am. Fed. Savs.

78

& Loan Ass'n v. Novotny,

(1979); Ladson, 853 F. Supp. at 704.

13

442 U.S. 366, 372-

The Amended Complaint alleges that the Defendants
conspired to discriminate and retaliate against the Plaintiff
based on her gender.

First, the Supreme Court has held that employment
discrimination is not actionable under§ 1985(3). See Great Am.
Fed. Savs.

& Loan Ass'n v. Novotny,

442 U.S. 366, 372-73

(1979).

The Court explained: "cases of alleged employment discrimination
are subject to a detailed administrative and judicial process
[under Title VII that is] designed to provide an opportunity for
nonjudicial and nonadversary resolution of claims." Id. Title
VII's "comprehensive plan" expressly sets time limitations for
administrative and judicial filings and "prevents immediate
filing of judicial proceedings" at several points. Id. at 37374. "If a violation of Title VII could be asserted through§
1985(3), a complainant could avoid most if not all of these
detailed and specific provisions of the law" and even
"completely bypass the administrative process, which plays such
a crucial role in the scheme established by Congress in Title
VII." Id. at 375-76.

Following Novotny, this Court held Title VII claims
are not proper predicates for civil rights conspiracy claims.
See Jenkins v. Arcade Bldg. Maint.,
14

44 F. Supp. 2d 524, 533

(S.D.N.Y. 1999); Ladson v. Ulltra E. Parking Corp ., 853 F . Supp.
699 , 704

(S .D. N.Y. 1 994) . This Court c larified that Novotny's

holding applies to both employment discrimination claims
explicitly mentioning Title VII , and those "covered or closely
related to th[ose] covered by Title VII." Ladson, 853 F. Supp.
at 704.

Plaintiff seeks relief for the injuries she "has
suffered as a result of being sexually harassed ,
discriminated[,] and retaliated against by her former employer
on the basis of gender discrimination, sexual harassment[,] and
retaliation." Arn. Compl. ':II 2

Plaintiff's failure to mention Title VII does not
relieve her of the required "detailed administrative and
judicial process" of filing a civil rights claim directly in
federal court. See Novotny,

44 2 U.S. at 372-73.

In addition , to plead a§ 1985(3) claim, a plaintiff
must allege:

( 1) a conspiracy; ( 2) for the purpose of
depriving, either directly or indirectly, any
person or c lass of persons of equal protection of
the laws, or of equal privileges and immunities
under the laws; and
15

(3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in [her]
person or property or deprived of any right of a
citizen of the United States.

Mian v. Donaldson, Lufkin

&

Jenrette Secs. Corp.,

7 F.3d 1085,

1087 (2d Cir. 1993). In addition, the conspiracy must be
motivated by "some racial or perhaps otherwise class-based,
invidious discriminatory animus behind the conspirators'
action." Id. at 1088 (quotation marks and citation omitted)

The Plaintiff "must provide some factual basis
supporting a meeting of the minds, such that defendants entered
into an agreement, express or tacit, to achieve the unlawful
end." Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009)
(quotation marks and citation omitted). "Broad allegations of
conspiracy are insufficient .

." Id. If Plaintiff "does not

allege the 'meeting of the minds' that a plausible conspiracy
claim requires" and, instead, merely alleges that her requests
"were ignored," her§ 1985 claim must be dismissed. See id.
Plaintiff has not done that.

Plaintiff offers only conclusory assertions that an
unlawful conspiracy existed and alleges nothing to suggest ESD
was part of any such conspiracy. She alleges that Defendant Hoyt
sexually harassed her, that she complained about the harassment
16

to individuals unrelated to ESD, that nobody responded to her
complaints, and that ESD employed Hoyt. Am. Compl.

~~

27, 43-53,

76 - 80, 91 , 121-32. The Plaintiff alleges an unlawful conspiracy
existed among the defendants to violate her civil rights. These
broad and conclusory allegations of conspiracy -

supported only

by her claim her complaints were ignored - comprise precisely
the sort of§ 1985 claim courts have dismissed as implausible.
The Amended Complaint's Sixth Cause of Action against ESD is
dismissed.

The§ 1986 Claim is Dismissed

The Plaintiff has alleged a claim against ESD under
§ 1986 for failure to prevent a civil rights conspiracy.
"Liability under§ 1986 is derivative of§ 1985 liability,

[and]

there can be no violation of§ 1986 without a violation of§
1985." Jews for Jesus, Inc. v. Jewish Cmty . Relations Council of
N.Y., Inc.,

968 F. 2d 286, 292 (2d Cir. 1992). Thus, where a

predicate§ 1985 claim is unavailable to a plaintiff, an action
under§ 1986 is also unavailable . See Ladson v. Ulltra E.
Parking Corp ., 853 F. Supp. 699, 704

(S.D .N. Y. 1994).

The Claim under New York Executive Law§ 296 is Dismissed

17

The provision of New York's Human Rights Law ("NYHRL")
under which Plaintiff seeks relief applies only to employers.
Because the Plaintiff does not allege she was an employee or
otherwise had an employment relationship with ESD, her NYHRL
claim is dismissed.

Executive Law§ 296 explicitly applies to employers.
See N.Y. Exec. Law§ 296(1) (a)
discriminatory practice .
agency.

."); Am. Compl.

("It shall be an unlawful
[f]or an employer or licensing

~

199. Courts in the Second Circuit

"typically treat Title VII and NYHRL discrimination claims as
analytically identical, applying the same standard of proof to
both claims." Salomon v. Our Lady of Victory Hosp., 514 F. 3d
217 , 226 n.9 (2d Cir. 2008). Thus, NYHRL's "proscriptions
against unlawful employment discrimination apply solely to
employees." Tagare v. Nynex Network Sys. Co., 994 F. Supp. 149,
159 (S.D .N.Y. 1997).

The "employee" requirement under Title VII and the
NYHRL requires an employment relationship with the defendant,
which is absent here. In Kunzler v. Canon, USA, Inc., 257 F.
Supp. 2d 574

(E.D.N.Y. 2003), the plaintiff was a Canon

employee, who had reported alleged sexual harassment by a Canon
supervisor directed at someone else. Id. at 576-77. The
18

allegedly harassed individual was a Canon customer - not a Canon
employee. Id. Analyzing Plaintiff's claim, the court held:

Because [the] alleged harassment was directed
toward a customer, who was neither an employee of
[the alleged harasser or] Canon,
[the
harassment]
[was] not 'an unlawful
employment practice' prohibited by Title VII and,
therefore, [cou ld] not satisfy the protected
activity prong of a retaliation claim.

Id. at 581-82. The court explained that "Title VII extends its
protection to individuals who are in an employment re lat ionship
with their alleged harasser" and noted that "the in cident
forming the bas is of the retaliation complaint here was not an
allegation that an employee was being harassed by an employer."
Id. at 582.

The Plaintiff has alleged she was a OMV employee, Am.
Compl . 1 54 , and that Defendant Hoyt, her alleged harasser , was
an ESD employee. Id. 1 26. The Amended Complaint 's only
allegations connecting Plaintiff's job at the OMV and Defendant
Hoyt's job at ESD are that he responded to Plaintiff's email
inquiry for help and "offered to find [her] a job in New York
State," Am. Compl. 11 38-40 , and that he "had the power as
Regional President of the Empire State Development Corporation
to hire , fire[,] and supervise Plaintiff Cater" at the OMV. Id.
19

~

61 . These allegations do not establish an employment

relationship between Defendant Hoyt and the Plaint i ff or between
ESD and the Pl a i ntiff .

Conclusion

Because the Amended Comp l a i nt fa il s to al l ege
cognizable causes of act i on against ESD , as set forth above ,
Plaintiff ' s First , Fifth, Sixth , Seventh , and Eigh th Causes of
Action against ESD are dismissed , with prej u dice .

It is so ordered.

New York, NY
Jja~

,

2019

~~~

ROBERT W. SWEET
U.S.D . J.

20