Martin v. New York State et al
Filing
79
OPINION AND ORDER: The defendants' March 14 motions for summary judgment are granted. The Clerk of Court is directed to enter judgment for the defendants and close this case. (Signed by Judge Denise L. Cote on 5/9/2019) (jca) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------- X
:
DENISE MARTIN,
:
Plaintiff,
:
:
-v:
:
NEW YORK STATE, NEW YORK STATE
:
DEPARTMENT OF CORRECTIONS AND COMMUNITY :
SUPERVISION, and JEFFREY RORICK,
:
:
Defendants.
:
:
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17cv9721 (DLC)
OPINION AND ORDER
APPEARANCES
For the plaintiff:
David DeToffol
DeToffol & Associates
125 Maiden Lane, Suite 5C
New York, New York 10038
For defendants New York State and the New York State Department
of Corrections and Community Supervision:
Letitia James
Attorney General of the State of New York
by Yan Fu, Assistant Attorney General
28 Liberty Street, 18th Floor
New York, New York 10005
For defendant Jeffrey Rorick:
Ryan T. Donovan
Harris, Conway & Donovan, PLLC
50 State Street, 2nd Floor
Albany, New York 12207
DENISE COTE, District Judge:
Defendants New York State (“NYS”), the New York State
Department of Corrections and Community Supervision (“DOCCS”),
and Jeffrey Rorick (“Rorick”) have moved for summary judgment on
the claims asserted against them by plaintiff Denise Martin
(“Plaintiff” or “Martin”).
Those motions are granted.
Background
The following facts are undisputed or taken in the light
most favorable to the Plaintiff, unless otherwise noted.
Plaintiff is, and was at all times relevant to this lawsuit, a
Correctional Officer (“CO”) at the Bedford Hills Correction
Facility (“Bedford Hills”), which is operated by DOCCS.
Defendant Rorick was a sergeant at Bedford Hills.
DOCCS’s
sergeants are responsible for supervising a group of COs in
carrying out their daily responsibilities, under the further
supervision of a Lieutenant.
Sergeants have no power to hire,
fire, transfer, reassign, or promote a CO.
Nor can a sergeant
alter a CO’s work schedule, compensation, or benefits.
In or around October 2015, Martin entered into a consensual
sexual relationship with Rorick.
At some point during their
relationship, Martin shared intimate photographs and a video of
herself with Rorick.
In February of 2016, Martin was informed
by CO Sylvia Meyers (“Meyers”) that those images had been
circulated among employees at Bedford Hills.
Martin ended her
relationship with Rorick and, on February 16, 2016, filed a
complaint with DOCCS’s Offices of Diversity Management (“ODM”).
The day after filing her complaint, Martin went on unrelated
worker’s compensation leave.
She went on a pre-planned vacation
2
shortly thereafter.
She returned to duty on April 20, 2016.
Affirmative Action Administrator (“AAA”) LaShanna Frasier
(“Frasier”) was assigned to investigate Martin’s allegations.
On March 1 and 2, Frasier interviewed Martin by telephone.
On
April 4, Frasier interviewed Meyers and another Bedford Hills
CO, Darnell Moore (“Moore”).
Meyers told Frasier that she had
received the compromising images of Martin from Moore, who asked
her to inform Martin that the images were being circulated among
Bedford Hills staff.
Moore told Frasier that he had received
the photos in a group text message, but that he did not
recognize the other numbers on the group text message.
On April 11, the Superintendent of Bedford Hills, at
Frasier’s instruction, issued a “Cease and Desist Memorandum” to
Rorick, directing him to cease and desist from any action that
may be construed as being discriminatory or harassing in nature.
On June 10, Frasier directed Bedford Hills to have a supervisor
read from a “Conduct Within the Workplace Memorandum” at the
beginning of each shift, for nine consecutive shifts, to remind
staff of appropriate workplace behavior.
Martin has not alleged
that Rorick engaged in any further discriminatory or harassing
conduct beyond what she reported in her February 2016 complaint.
Frasier regularly communicated with Martin and with Bedford
Hills Captain Paul Artuz about the investigation’s progress and
to ensure that Martin was not being harassed or retaliated
3
against.
During one of her conversations with Frasier, Martin
stated that “everyone” at Bedford Hills was talking about her,
including inmates.
She specifically identified two Bedford
Hills COs, St. Claire Munnlyn (“Munnlyn”) and Timothy Romero
(“Romero”), who she alleged were talking about her outside her
presence.
Other than Munnlyn and Romero, Martin did not
identify or provide descriptions of staff or inmates who were
talking about her.
She stated that nobody, including Romero or
Munnlyn, had said anything to her directly about the photos and
video, and she could not identify any person who had witnessed
Munnlyn or Romero talking about her.
In August 2016, AAA Frasier interviewed COs Munnlyn and
Romero about Martin’s allegations.
Both COs acknowledged that
they had seen the images but denied harassing Martin or talking
about the pictures and videos to her.
Neither Munnlyn nor
Romero were able to identify the person who had originally
circulated the images.
In an attempt to trace the images to
their original sender, Frasier interviewed several COs and
sergeants in addition to Meyers, Moore, Munnlyn, and Romero.
None of these individuals stated that they had seen the images.
Frasier interviewed Rorick on September 27, 2016.
Rorick
admitted to Frasier that he and Martin had exchanged such
images, but denied sending the pictures and video to anybody
else.
4
Frasier submitted her investigative report on November 7,
2016.
In it, she determined that Rorick had violated DOCCS
Directive #2605, entitled “Sexual Harassment in the Workplace,”
which states that “DOCCS has a zero tolerance policy with
respect to sexual harassment in the workplace and provides no
latitude for the investigation of sexual harassment.”
She also
determined that Rorick had violated Section 2.1 of the DOCCS
Employee’s Manual, which states that “no employee, whether on or
off duty, shall so comport himself or herself as to reflect
discredit upon the Department or its personnel.”
Frasier
recommended appropriate administrative action and the matter was
referred to the DOCCS Bureau of Labor Relations (“BLR”), which
is responsible for administering the terms and conditions of
employment for DOCCS employees.
On December 22, 2016, Rorick was placed on administrative
leave.
BLR served a Notice of Discipline (“NOD”) on Rorick on
December 26 based on ODM’s investigation and recommendation.
On
that same date, Rorick was suspended indefinitely without pay.
Pursuant to a collective bargaining agreement, a DOCCS
employee must be served with an NOD before imposition of a
penalty involving a loss of leave credits or other privilege,
written reprimand, fine, suspension without pay, reduction in
grade, or dismissal from service.
Upon receipt of an NOD, the
employee can either accept the penalty or file a grievance with
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BLR.
If the grievance is not settled or otherwise resolved, it
may be appealed to arbitration.
On February 14, 2017, prior to arbitration, Rorick, his
union, and DOCCS settled the NOD.
As part of that settlement
agreement, Rorick agreed to serve a suspension without pay from
December 26, 2016 through March 26, 2017, to be reassigned to
Five Points Correctional Facility in Romulus, New York, and to
serve a twelve month Disciplinary Evaluation Period, which is a
form of probation.
Rorick never returned to Bedford Hills after
December 22, 2016.
The Disciplinary Evaluation Period ended on
March 26, 2018, without incident.
On October 11, 2016, almost a month before Frasier
submitted her report, Martin filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”).
She received a
right to sue letter on September 28, 2017.
On December 11, 2017, Martin commenced this action against
NYS, DOCCS, and Rorick.
Martin filed a First Amended Complaint
(“FAC”) on February 14.
The FAC asserts claims against NYS and
DOCCS for sex discrimination and retaliation under Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e3(a).
It also asserts claims against Rorick for sex
discrimination, retaliation, and aiding and abetting liability
under the New York Human Rights Law, (“HRL”), N.Y. Exec. L. §
296, as well as common law claims for negligent infliction of
6
emotional distress and intentional infliction of emotional
distress.
Discovery closed on February 15, 2019.
Defendants NYS and
DOCCS filed a joint motion for summary judgment on March 14.
Rorick separately moved for summary judgment on the same date.
Those motions became fully submitted on April 25, 2019.
Discussion
A motion for summary judgment may not be granted unless all
of the submissions taken together “show[] that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
56(a).
Fed. R. Civ. P.
“A genuine issue of material fact exists if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.”
Nick’s Garage, Inc. v. Progressive Cas. Ins.
Co., 875 F.3d 107, 113 (2d Cir. 2017) (citation omitted).
The
moving party bears the burden of demonstrating the absence of a
material factual question.
46, 48 (2d Cir. 2015).
Gemmink v. Jay Peak Inc., 807 F.3d
In making this determination, the court
must “view the evidence in the light most favorable to the party
opposing summary judgment” and “draw all reasonable inferences
in favor of that party.”
Weyant v. Okst, 101 F.3d 845, 854 (2d
Cir. 1996).
Once the moving party has asserted facts showing that the
non-movant’s claims or affirmative defenses cannot be sustained,
7
the party opposing summary judgment “must set forth specific
facts demonstrating that there is a genuine issue for trial.”
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation
omitted).
“[C]onclusory statements, conjecture, and
inadmissible evidence are insufficient to defeat summary
judgment,” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317
(2d Cir. 2011) (citation omitted), as is “mere speculation or
conjecture as to the true nature of the facts.”
Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
Only disputes over material facts will properly preclude the
entry of summary judgment.
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Martin has withdrawn all of her claims against NYS as well
as her retaliation claims against DOCCS. 1
Only Martin’s Title
VII hostile work environment claim remains against DOCCS. 2
She
has also withdrawn her negligent infliction of emotional
distress claim against Rorick.
Her HRL and intentional
It is undisputed that she suffered no adverse employment action
as required to maintain a retaliation claim against DOCCS. See
Littlejohn v. City of New York, 795 F.3d 297, 315-16 (2d Cir.
2015).
1
In her opposition to DOCCS’s motion for summary judgment,
Martin appears to suggest that DOCCS may be liable under the
HRL. The FAC does not assert a claim against DOCCS for
violation of the HRL. In any event, such a claim against NYS or
DOCCS would be barred by the Eleventh Amendment.
2
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infliction of emotional distress claims against Rorick remain.
DOCCS
DOCCS’s motion for summary judgment on Martin’s Title VII
claim is granted.
Title VII makes it unlawful for an employer
to “discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin.”
42 U.S.C. § 2000e-2(a)(1).
The Supreme Court
has explained that this prohibition extends to “a
discriminatorily hostile or abusive [work] environment.”
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Harris
In order to
prevail on a hostile work environment claim, a plaintiff must
“produce enough evidence to show that the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.”
Duplan v. City of New York, 888 F.3d 612, 627 (2d Cir. 2018)
(citation omitted).
“A plaintiff must show not only that she
subjectively perceived the environment to be abusive, but also
that the environment was objectively hostile and abusive.”
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.
2010).
Courts are required to “look at the record as a whole”
and consider “a variety of factors, including the frequency of
the discriminatory conduct; its severity; whether it is
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physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.”
Id. (citation omitted)
“An employer’s liability for hostile work environment
claims depends on whether the underlying harassment is
perpetrated by the plaintiff’s supervisor or [her] nonsupervisory co-workers.”
Wiercinski v. Mangia 57, Inc., 787
F.3d 106, 113 (2d Cir. 2015).
[A]n employee is a ‘supervisor’ for purposes of the
employer’s vicarious liability under Title VII if he
or she is empowered by the employer to take tangible
employment actions against the victim, i.e., to effect
a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a
decision causing a change in benefits.”
Id. at 113-14 (citation omitted).
When the harassment is
perpetrated by a non-supervisory coworker, an employer will only
be held liable for its own negligence.
F.3d 757, 762 (2d Cir. 2009).
Duch v. Jakubek, 588
To show employer negligence, a
plaintiff “must demonstrate that her employer failed to provide
a reasonable avenue for complaint or that it knew, or in the
exercise of reasonable care should have known, about the
harassment yet failed to take appropriate remedial action.”
(citation omitted)
“In determining the appropriateness of an employer’s
response, we look to whether the response was immediate or
10
Id.
timely and appropriate in light of the circumstances,
particularly the level of control and legal responsibility the
employer has with respect to the employee’s behavior.”
Summa v.
Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013) (citation
omitted).
“The standard for reviewing the appropriateness of an
employer’s response to co-worker harassment is essentially a
negligence one, and reasonableness depends among other things on
the gravity of the harassment alleged.”
omitted).
Id. at 125 (citation
There is “no legal requirement that an employer
discipline employees where it succeeds in eradicating the
offensive behavior from the workplace by other means.”
Chenette
v. Kenneth Cole Prods., 05cv4849(DLC), 2008 WL 3176088, at *11
(S.D.N.Y. Aug. 6, 2008).
Rather, the employer’s response need
only be “sufficiently calculated to end the harassment.”
Murray
v. New York Univ. Coll. Of Dentistry, 57 F.3d 243, 250 (2d Cir.
1995).
Martin makes no argument that Rorick was Martin’s
“supervisor” and the undisputed facts indicate that he was not.
Nothing in the record indicates that Rorick had the power to
effect a significant change in Martin’s employment status.
Wiercinski, 787 F.3d at 114.
Further, there is no dispute that
DOCCS provided a reasonable avenue of complaint.
F.3d at 762.
See Duch, 588
To maintain her hostile work environment claim
against DOCCS, Martin therefore must show (1) that DOCCS knew or
11
should have known about the harassment and (2) that DOCCS failed
to take appropriate remedial action.
It is undisputed that
DOCCS was aware of the harassment as of at least February 2016.
Martin’s objections to the adequacy of the remedial
measures undertaken by DOCCS are based primarily on the amount
of time that elapsed between the filing of her complaint and
Rorick’s removal from Bedford Hills.
Martin argues that “a
reasonable jury could easily find that eight (8) months is
tantamount to negligent procrastination.”
This argument is
unpersuasive.
The undisputed facts show that DOCCS promptly undertook an
investigation into Rorick’s conduct, directed Rorick to cease
and desist from any harassing behavior, and took steps to
mitigate workplace harassment generally.
Martin did not allege
any further harassment by Rorick after the investigation was
commenced.
Although Martin alerted Frasier that other COs were
talking about her outside of her presence, she provided no
details to substantiate that complaint.
Nonetheless, Frasier
investigated that lead, and was unable to corroborate it.
To
the extent that there is a dispute as to whether Martin was
subject to further harassment by other coworkers after the
investigation was commenced, that dispute has little bearing on
DOCCS’s liability because it was never reported to DOCCS.
DOCCS
could not reasonably be expected to have addressed harassment of
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which Martin never complained.
In short, there is no evidence
from which a reasonable jury could find that DOCCS acted
negligently or that its remedial response was inadequate.
Jeffrey Rorick
Rorick’s motion for summary judgment on the remaining
claims against him is granted.
The HRL provides that “it shall
be an unlawful discriminatory practice . . . for an employer or
licensing agency, because of . . . sex . . . to discriminate
against [an] individual in compensation or in terms, conditions,
or privileges of employment.”
N.Y. Exec. Law § 296(1)(a).
Section 296(7) of the HRL prohibits “retaliate[ion] or
discriminat[ion] against any person because her or she has
opposed any practices forbidden under [the HRL] or because he or
she has filed a complaint, testified, or assisted in any
proceeding under this article.”
Id. § 296(7).
The HRL differs from Title VII in that “[u]nder the HRL . .
. individual defendants may be sued in their personal capacities
for the sexual harassment.”
Tomka v. Seiler Corp., 66 F.3d
1295, 1313 (2d Cir. 1995).
It is well established, however,
that an employee “is not individually subject to suit with
respect to discrimination based on . . . sex under [the HRL] . .
. if he is not shown to have any ownership interest or any power
to do more than carry out personnel decisions made by others.”
Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542 (1984).
13
Section 296(6) of the HRL also states that it shall be an
unlawful discriminatory practice “for any person to aid, abet,
incite, compel or coerce the doing of any of the acts forbidden
under this article, or attempt to do so.”
296(6).
N.Y. Exec. Law §
“Based on this language, several courts have . . .
[held] that a defendant who actually participates in the conduct
giving rise to a discrimination claim may be held personally
liable under the HRL.”
Tomka, 66 F.3d at 1317.
Because he was not an “employer,” Rorick is not subject to
liability under the HRL.
Martin has not presented any evidence
to suggest that Rorick had any “ownership interest” or “power to
do more than carry out personnel decisions made by others.”
Id.
Further, Martin has admitted that Rorick did not retaliate
against her.
Rorick cannot be subject to liability for “aiding and
abetting” under the HRL in the absence of a primary violation of
that law.
See Forrest v. Jewish Guild for the Blind, 3 N.Y.3d
295, 314 (2004).
Martin does not assert a claim for violation
of the HRL against any defendant other than Rorick, 3 whose
conduct, for reasons just explained, does not constitute a
violation of the HRL.
Nor could she maintain such a claim against NYS or DOCCS, as
explained above.
3
14
Martin’s claim for intentional infliction of emotional
distress is time barred.
statute of limitations.
That claim is subject to a one year
N.Y. C.P.L.R. § 215(3).
Martin has not
alleged any potentially tortious conduct by Rorick that occurred
after February 2016.
11, 2017.
Martin commenced this action on December
Her claim for intentional infliction of emotional
distress is therefore barred by the statute of limitations.
Martin’s argument that her filing of an EEOC charge on
October 11, 2016 tolled the statute of limitations on her
intentional infliction of emotional distress claim is meritless.
“[F]iling an EEOC charge does not toll the time for filing state
tort claims, including those that arise out of the same nucleus
of facts alleged in the charge of discrimination filed with the
EEOC.”
Castagna v. Luceno, 744 F.3d 254, 258 (2d Cir. 2014).
Conclusion
The defendants’ March 14 motions for summary judgment are
granted.
The Clerk of Court is directed to enter judgment for
the defendants and close this case.
Dated:
New York, New York
May 9, 2019
__________________________________
DENISE COTE
United States District Judge
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