Dunn v. Starner

Filing 88

OPINION AND ORDER re: 62 MOTION Compensation filed by Robert L. Dunn, Sr., 54 MOTION for Summary Judgment filed by Blake Starner: For the foregoing reasons, Defendant's motion for summary judgment is granted and Plaintiff's motion for "compensation" and a "stay away order" is denied. Plaintiff's claims are dismissed with prejudice. The Clerk is respectfully requested to terminate the pending motions (Docket Nos. 54, 62), close the case, and mail a copy of this Opinion and Order to the pro se Plaintiff. (Signed by Magistrate Judge Judith C. McCarthy on 2/13/2018) (Attachments: # 1 Exhibit)(jwh)

Casalino v. New York State Catholic Health Plan, Inc., Not Reported in F.Supp.2d (2012)
2012 WL 1079943

2012 WL 1079943
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Marie CASALINO, Plaintiff,
v.
NEW YORK STATE CATHOLIC HEALTH PLAN,
INC., d/b/a Fidelis Care New York, Defendant.
No. 09 Civ. 2583(LAP).
|
March 30, 2012.
Opinion
Opinion & Order
LORETTA A. PRESKA, Chief Judge.
*1 Plaintiff Marie Casalino (“Casalino” or “Plaintiff”)
brings this action against her former employer New
York State Catholic Health Plan, Inc. (“Fidelis” or
“Defendant”) alleging unlawful gender discrimination
in the forms of hostile work environment harassment,
retaliation, and disparate treatment in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et
seq. (“Title VII”) and the New York City Human Rights
Law, N.Y.C. Admin. Code § 8–101 et seq. (“NYCHRL”
or “HRL”). Fidelis moves for summary judgment and
dismissal of these claims under Federal Rule of Civil
Procedure 56. For the reasons below, Defendant's motion
is GRANTED in part with prejudice and DENIED in
part.

I. BACKGROUND
The Court presumes the parties' familiarity with the facts
of this case, which are quite lengthy and have been set
out in detail in the parties' 56.1 Statements and Counter–
Statements [dkt. nos. 40–42, 48.] Nevertheless, the Court
undertakes to include a brief summary of the facts for the
purposes of this opinion, citing variously to Defendant's
Rule 56.1 Statement (“D.56.1”), Plaintiff's Rule 56.1
Statement (“P.56.1”), and Defendant's Response to
Plaintiff's Statement of Facts (“Def. Reply 56.1”). To the
extent there appears to be a material dispute as to any
fact referenced in this fact summary or opinion based

on admissible evidence, the Court has endeavored to so
indicate.
Casalino is a board-certified pediatrician with a
subspecialty in Neonatal–Perinatal medicine. She holds a
Master's Degree in public health. In 1998 Plaintiff moved
from clinical and academic medicine into public health
administration. In 2003 she entered the field of managed
health care. In February 2005 she was hired by Mark
Lane (“Lane”), Chief Executive Officer of Fidelis, as a
medical director. Plaintiff reported directly to Dr. Marco
Michelson (“Michelson”), Fidelis' Chief Medical Officer,
and she worked out of Fidelis' headquarters in Rego Park,
Queens. In autumn 2005 a second medical director, Dr.
Nancy Klotz (“Klotz”), joined Fidelis and also began
reporting to Michelson. (P. 56.1 ¶¶ 312–15, 324.)
In October 2005 Fidelis acquired Center Care, another
health plan located in Manhattan. After having received a
generally positive 90–day written performance evaluation
in June 2005, Fidelis appointed Plaintiff medical director
of its new Center Care branch in addition to her
other duties. She maintained offices at Center Care
and at Fidelis. In March 2006, Michelson gave her a
written performance evaluation with an overall score
of “successful” which resulted in a raise. (P. 56.1 ¶¶
322–23.) At all times, Fidelis had a Code of Conduct
and an Employee Handbook, both of which prohibited
employee discrimination and harassment. The Handbook
states that any allegations of harassment or discrimination
will be “promptly and thoroughly investigated.” It states
that harassment can occur “over email, phone mail
or other electronic media.” The Handbook also sets
forth a formal corrective action procedure, under which
employees with performance problems are to be given
two written warnings on a specific “corrective action
form.” (P. 56.1 ¶¶ 331–41.)
*2 In March 2006, Susan Davis (“Davis”), a supervisor
for clinical services who worked in the Buffalo office,
asked to speak with Diane Tucker (“Tucker”), Fidelis'
Vice President of Human Resources, about what
she called a “sensitive issue.” Davis told Tucker
that Michelson had been “loud,” “unreasonable,” and
“unprofessional” in a telephone call with her. Davis also
told Tucker that Liya Davidov (“Davidov”), in Fidelis'
pharmacy department, had also had a similar interaction
with Michelson. Davis had complained to Tucker in
Human Resources about Michelson, and Tucker had told

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her that she would look into the matter and get back to
her. According to Davis, Tucker never did so. (P. 56.1 ¶¶
348–60.)
On May 15, 2006, Vicki Landes (“Landes”), Director
of Clinical Services and Davis's immediate supervisor,
received a phone call from Michelson in which he became
very angry and vocal, accusing her of not doing job and
then slamming his phone down. Landes became very upset
at the interaction and spent 10–15 minutes in a co-worker's
office trying to compose herself. Landes then called
Robert Fazzolari (“Fazzolari”), Assistant Vice President
for Corporate Compliance. Fazzolari called her back
with Regina Trainor (“Trainor”), Chief Legal Officer
and Head of Compliance at Fidelis. Landes explained
the incident to them, and they informed her that Tucker
would be following up with her. (P. 56.1 ¶¶ 361–75.)
Landes also called Plaintiff, who was her direct supervisor,
who was at home on medical leave at the time. Landes
was very upset, and Plaintiff tried to help her regain her
composure. Plaintiff told Landes that she was going to
come back to work and help her with this incident. In the
meantime, Plaintiff and Landes agreed that Landes should
stay clear of Michelson. (P. 56.1 ¶¶ 376–80.)
Human Resources did not contact Landes. On May 17
and 19, 2006, Landes e-mailed Tucker and Fazzolari
requesting a follow-up on the Michelson situation. Tucker
did not reply to either e-mail. (P. 56 .1 ¶¶ 382–85.) On May
17, 2006, Plaintiff returned to work, and Tucker came to
visit her about the Landes–Michelson incident. Plaintiff
reported to Tucker that she found it upsetting that Landes
had been so frightened by the call and said she would do
whatever she could to help smooth things over. (P. 56.1 ¶¶
386–89.) Tucker then spoke to Michelson and requested
that he reprimand individuals, if at all, one-on-one and not
with others around. (P. 56.1 ¶ 391.)
Thereafter, Landes attempted to stay clear of Michelson,
but Plaintiff shortly found herself mediating an additional
dispute between them. Michelson had sent Landes an email accusing her of not doing certain work on Fidelis'
website. Landes explained to Plaintiff that she had never
been assigned the work. When Plaintiff attempted to
explain this to Michelson, he reacted sharply, harshly
criticizing Landes. Plaintiff told Landes they would try
and address the website issue together and Landes could
go through Plaintiff in her dealings with Michelson.
(P. 56.1 ¶¶ 393–400, 403–05.) Following this mediation,

however, Plaintiff noticed that Michelson became more
difficult for her to deal with. He attempted to marginalize
Plaintiff in her meetings with Lane and Fidelis Chief
Operating Officer Father Patrick Frawley (“Frawley”).
He prevented Plaintiff from including her matters on the
meeting agendas, interrupted her when she attempted to
speak, and criticized her comments after she had spoken.
Plaintiff eventually began taking notes and making
comments in private conversations with participants after
meetings ended. She told Michelson that she was being
quiet due to his interruptions and criticisms whenever she
spoke. Michelson then began criticizing Plaintiff's written
submissions. He eventually became difficult to deal with
on administrative matters like approvals for days off or
time for medical appointments. (P. 56.1 ¶¶ 417–24.)
*3 In the autumn of 2006, Plaintiff was responsible for
completing a project entitled Best Clinical Administrative
Practices (“BCAP”), which required the completion and
submission of a report and presentation to New York
State in order to meet certain regulatory requirements for
both Fidelis and Center Care. Michelson had assigned
Plaintiff the task when she became Medical Director for
Center Care in September 2005. Plaintiff and Michelson
had difficulty coordinating his edits to the presentation
leading up to its due date on September 8, 2006,
particularly in light of Lane and Frawley's significant
issues with an earlier draft that Plaintiff had submitted. On
September 7, 2006, the night before the project was due
and Plaintiff and Michelson were to present it once again
to Lane and Frawley, having not received Michelson's
edits by 5 p.m., Plaintiff left for the day. She assigned an
administrative assistant the task of waiting for and then
making any final changes Michelson might have. (See Def.
56.1 ¶¶ 139–52; P. 56.1 139–52.)
On September 8, 2006, while waiting to make the
final presentation to Lane and Frawley, Michelson
began berating Plaintiff in the anteroom outside Fidelis'
executive office. Specifically, Michelson said he was
frustrated that Plaintiff had not taken ownership for
her projects and assignments, had not gotten her work
done, and had left assignments for others. Klotz and
two additional staff were present in the room during this
interaction. After Plaintiff gathered herself, the meeting
on the submission to the New York State Department of
Health took place. After the meeting, Michelson called
Plaintiff to his office and started yelling and waiving his
hands. Plaintiff asked Michelson not to speak to her that

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way but “he just kept screaming and screaming.” Plaintiff
left Michelson's office, returned to her own, and broke
down. She called Tucker who came to Plaintiff's office.
Plaintiff informed Tucker that Michelson had treated her
the way she had heard that he treated other women.
Plaintiff remained in her office with the door closed for the
rest of the day. (P. 56.1 ¶ ¶ 454–58; Def. 56.1 ¶¶ 154–58.)
On September 13, 2006, Plaintiff met with Trainor and
Fazzolari regarding the incident. She told them she had
been frightened and reduced to tears and sobbing and that
there were women who were afraid to be in an office with
Michelson. Plaintiff told Trainor, “you have a problem
employee who behaves inappropriately towards women
and you are now on notice from me that you have to
do something about him.” Plaintiff felt that Trainor was
unsympathetic. Trainor told Plaintiff that she felt this
was an issue with Michelson's management style and that
Michelson was trying to manage her. (P. 56.1 ¶¶ 464–
67.) Tucker did not conduct any further investigation into
Plaintiff's complaint. Tucker did speak with Michelson,
advising him to “adjust how he was interacting and figure
out a way to work with Marie.” (P. 56.1 ¶¶ 478–81.)
*4 In October, Fidelis announced that Michelson was
taking a leave of absence from the company effective
November 1, 2006, and that Klotz would take over as
acting Chief Medical Officer. (Pl. 56.1 ¶ 488.) At her
prior performance evaluation in March 2006, Plaintiff
had requested that Michelson provide her with an interim
performance evaluation in six months time. That review
took place just before he left, on or about October 31,
2006. (Def. 56.1 ¶ 184.) In this review, Plaintiff received
six “needs improvement” scores in various areas, and
Michelson reported that Plaintiff needed to improve her
level of ownership over projects, be more willing to discuss
her own shortcomings, be more involved in the clinical
service departments, and better improve the credentialing
process over which she was in charge. The overall score
for the review was “Needs Improvement,” which was the
second lowest score possible to achieve. (Def. 56.1 ¶¶ 187–
91.) On or about December 15, 2006, Plaintiff filed an
extensive written response to this review with Fidelis in
which she defended herself on substance and made no
mention of retaliation or discrimination. She claimed that
the review was unfair and that Fidelis' fiscal challenges
may have compromised her performance. (Def. 56.1 ¶¶
199–201.)

While working under Klotz during Michelson's leave
of absence, Klotz informed Plaintiff that Lane and
Frawley had a negative opinion of her work. Plaintiff told
Klotz that she felt that Michelson had made an effort
to diminish her in their eyes. Plaintiff worked closely
with Klotz during this period, dividing up Michelson's
responsibilities, and Klotz ultimately felt that she could
not have done the work of acting Chief Medical Officer
without Plaintiff's help. On December 7, 2006, after a
series of presentations to a committee of the Fidelis Board
of Directors, Klotz told Plaintiff that she felt that “we
had turned a corner” in restoring Plaintiff's credibility.
Plaintiff told Klotz she felt it was owing to Michelson's
absence. (P. 56.1 ¶¶ 493–505.) In mid-December, word
spread that Michelson would be returning in January
2007. Plaintiff was very worried and spoke to both Klotz
and Tucker about her concerns. Both assured her that
things would be better upon his return. (P. 56.1 ¶¶ 513–36.)
Klotz left for a vacation in Israel from December 21,
2006 through January 2, 2007. As of December 21, her
October performance review notwithstanding, Plaintiff
had never received a warning notice under the Fidelis
corrective action policy as described in the Employee
Handbook and had never been advised that she was
in danger of termination. Her feedback from Klotz
had been positive. (P. 56.1 ¶¶ 517, 600.) Beginning
December 22, 2006, however, four incidents came to a
head almost simultaneously which, according to Fidelis,
were “significant performance deficienc[ies]” and largely
formed the basis for Plaintiff's ultimate termination. (See,
e.g., Def. 56.1 ¶¶ 216, 253.) They were: (1) Plaintiff's
failure to revoke the credentials of a Dr. Cheng as a
Fidelis provider consistent with Fidelis' policy regarding
medical license revocations and the like; (2) Plaintiff's
failure timely to revoke the credentials of a Dr. Florio for
substantially the same reasons; (3) Trainor's realization
that Plaintiff had “never given or ensured that Behavioral
Health staff had proper access to Fidelis computer system
when they were on-call at night and over the weekend;”
and (4) the “Family K” incident in which authorization of
provider services was granted without having a required
negotiated rate in place for those services. Each of these
incidents or issues arose on or after December 22, 2006,
within a 10–day period. 1
1

The facts surrounding these incidents are subject to
substantial dispute between the parties and go to
the heart of Fidelis' proffered reasons for Plaintiff's

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Casalino v. New York State Catholic Health Plan, Inc., Not Reported in F.Supp.2d (2012)
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termination, as well as Plaintiff's claim of pretext in
this suit. These disputed facts are laid out at length
in the parties' 56.1 Statements. (See Def. 56.1 ¶¶ 216–
73, 279–89; P. 56.1 ¶¶ 216–73, 279–89, 518–81; Def.
Reply 56.1 ¶¶ 518–81.)

*5 Exactly what happened next at Fidelis is heavily
disputed by the parties, as is Michelson's role, if any,
in Plaintiff's ultimate termination. Michelson returned to
Fidelis on January 2, 2007. That same day, Lane sent
out an e-mail welcoming Michelson back and announcing
that Klotz would be taking over the role of head of
Center Care, which had been Plaintiff's position until
that day. Plaintiff was not advised of this decision until
the e-mail was sent out. (Def. 56.1 ¶¶ 274–75.) Fidelis
states that this decision was made prior to Klotz's return
to the office on January 3, 2007, and that “it did not
mean that Plaintiff could not continue her employment
at Fidelis.” (Def. 56.1 ¶ 277.) Earlier that same day,
however, with Michelson now back in the office, Lane had
sent Michelson a draft of the same e-mail for his review
and comment. Michelson replied, “Looks good. Is the
unspoken message too obvious?” (P. 56.1 ¶¶ 583–89.)
Simultaneously, and as a result of the incidents in
late December 2006, Frawley had prepared a memo
to Klotz for her review upon her return and copied
it to Trainor, Lane, and Plaintiff on the morning of
January 3, 2007 when Klotz returned. The memo describes
what Frawley felt were Plaintiff's “numerous performance
deficiencies” and “serious concerns” about Plaintiff's
work. Frawley describes “grave concerns relative to
Dr. Casalino's judgment, ownership, and overall ability
to perform appropriate oversight of a critical process
that has significant regulatory and quality implications
for the Plan and its members.” Trainor responded
to the memo via e-mail, largely concurring in his
judgment. Though Klotz testified that she began the day
with no intention of terminating Plaintiff, (P. 56.1 ¶
591), after reviewing Frawley's memo, Trainor's e-mail,
and additional materials on Plaintiff's performance, she
resolved to terminate her. (Def. 56.1 ¶¶ 290.) Though
Michelson had returned to Fidelis as Chief Medical
Officer the day before, Fidelis represents that “Dr.
Klotz had the authority to do so ... because she was
Plaintiff's supervisor during the December mishaps and
Dr. Michelson was not yet fully integrated back into his
role.” (Def. 56.1 ¶ 290.)

Fidelis notes that Klotz was the sole decision maker in
Plaintiff's termination and had no knowledge of Plaintiff's
prior complaints about Michelson. (Def. 56.1 ¶ 215.)
Similarly, Fidelis states that Michelson played no role in
the decision. (Def. 56.1 ¶¶ 293–94.) Plaintiff, however,
points to testimony from Trainor that a January 3, 2007
meeting was called in which Trainor, Lane, Frawley,
Klotz, and possibly even Michelson attended and “a
conclusion was reached at the meeting to terminate
Casalino. It was discussed who would terminate her, and
it was decided that Klotz would.” (See P. 56.1 ¶¶ 290, 596–
98.) Moreover, Klotz spoke with Michelson on January 3,
2007, prior to making her decision to terminate Plaintiff.
(Pl. 56.1 ¶ 290.) Later that day, Plaintiff was called into
a meeting with Klotz and Tucker and was informed she
was terminated. (Def. 56.1 ¶ 299; P. 56.1 ¶ 602.) Klotz later
composed a memorandum laying out the performance
failures resulting in Plaintiff's termination. (Def. 56.1 ¶¶
300–02.)

II. DISCUSSION
A. Summary Judgment Standard of Review
*6
The standard for summary judgment is
uncontroversial. In considering a motion for summary
judgment, the Court resolves all ambiguities and draws all
reasonable inferences against the moving party. Lindsay
v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 50 (2d
Cir.2009). “Summary judgment is appropriate only ‘if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.’ “ Kwan v. Schlein, 634 F.3d 224, 228 (2d
Cir.2011) (quoting Fed.R.Civ.P. 56(a)); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
“An issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. A fact is material if it might affect the outcome
of the suit under the governing law.” Lindsay, 581 F.3d
at 50. “The inquiry performed is the threshold inquiry of
determining whether there is the need for a trial—whether,
in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.”
Liberty Lobby, 477 U.S. at 250.
Rule 56 mandates summary judgment “against a party
who fails to make a showing sufficient to establish the

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existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. “[T]here is no issue for trial
unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. If
the evidence is merely colorable or is not significantly
probative, summary judgment may be granted.” Liberty
Lobby, 477 U.S. at 249–50 (internal citations omitted). In
the face of insufficient evidence, “there can be ‘no genuine
issue as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial.”
Celotex, 477 U.S. at 322–23.
“It is now beyond cavil that summary judgment may
be appropriate even in the fact-intensive context of
discrimination cases.” Abdu–Brisson v. Delta Air Lines,
Inc., 239 F.3d 456, 466 (2d Cir.2001), cert. denied, 534
U.S. 993, 122 S.Ct. 460, 151 L.Ed.2d 378 (2001); see
also Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d
Cir.2000) (instructing that “trial courts should not ‘treat
discrimination differently from other ultimate questions
of fact’ ”) (quoting Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000)). Accordingly, a plaintiff alleging
Title VII discrimination claims “cannot escape summary
judgment merely by vaguely asserting the existence of
some unspecified disputed material facts ... or defeat the
motion through mere speculation or conjecture.” Jones v.
Hirschfeld, 348 F.Supp.2d 50, 59 (S.D.N.Y.2004).

B. Analysis
Plaintiff alleges unlawful gender discrimination in
the forms of hostile work environment harassment,
retaliation, and disparate treatment in violation of Title
VII and NYCHRL. The Court addresses each claim in
turn. Separate analysis of the Title VII and NYCHRL
claims are provided where necessary but are otherwise
discussed together.

1. Gender–Based Harassment: Hostile Work
Environment
*7 To prevail on her claim that she experienced genderbased harassment under Title VII, Plaintiff must show
that: (1) she is a member of a protected class; (2) she
suffered unwelcome harassment; (3) she was harassed
because of her membership in a protected class; and
(4) the harassment was sufficiently severe or pervasive

to alter the conditions of employment and create an
abusive work environment. See Gregory v. Daly, 243
F.3d 687, 691–92 (2d Cir.2001); Monterroso v. Sullivan &
Cromwell, LLP, 591 F.Supp.2d 567, 584 (S.D.N.Y.2008).
For the purposes of this motion, the Court focuses on
elements three and four above. It is axiomatic that a
successful allegation of harassment must demonstrate
that the conduct of which Plaintiff complains occurred
because of her gender. See Brennan v. Metropolitan Opera
Assoc., Inc., 192 F.3d 310, 318 (2d Cir.1999). Moreover,
“incidents must be more than episodic; they must be
sufficiently continuous and concerted in order to be
deemed pervasive.” Alfano v. Costello, 294 F.3d 365, 374
(2d Cir.2002). Plaintiff must 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.’ “ Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir.2000) (quoting Harris
v. Forklift Sys. Inc., 510 U.S. 17, 21, 114 S.Ct. 367,
126 L.Ed.2d 295 (1993)); see also Brennan, 192 F.3d at
318 (“Isolated, minor acts or occasional episodes do not
warrant relief.”).
Here, Plaintiff has simply failed to adduce sufficient
evidence to support even a prima facie claim of genderbased workplace harassment. For the reasons below,
Plaintiff cannot point to facts sufficient for a reasonable
jury to find that (a) the conduct she experienced was
based upon her gender, or (b) rose to a level that
was sufficiently severe or pervasive. For these reasons,
Defendant's motion for summary judgment as to the
hostile work environment claim must be granted, whether
categorized as a Title VII or NYCHRL claim.
To be actionable, the conduct of which Plaintiff complains
must have occurred because of her gender. Brennan, 192
F.3d at 318; Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
Incidents, however abusive, that are not gender-related
are not relevant to establish a claim against Fidelis that
can survive its motion for summary judgment. See Norris
v. N.Y.C. Hous. Auth., No. 02 Civ. 6933, 2004 WL
1087600, at *12 (S.D.N.Y. May 14, 2004) (“[R]udeness
without any evidence of discriminatory intent does not
constitute discrimination.”).
Plaintiff's harassment allegations in this case reduce to
essentially one verbal encounter with Michelson, which

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was itself in no way characterized by any gender-specific
animus. (Def. R. 56.1 ¶¶ 139–143.) Plaintiff does not
allege that Michelson ever made, for example, derogatory
comments about women or engaged in any sexually
inappropriate behavior. (See generally P. 56.1.) Plaintiff's
testimony in this regard does not raise even a direct
inference of conduct occurring because of her gender.
In fact, Plaintiff concedes that this incident occurred
after she left the “BCAP” project in the hands of an
executive assistant just before its deadline. (Def. R. 56.1
¶¶ 151–52.) Apart from this one central interaction,
Plaintiff elsewhere suggests that she was “marginalized”
and “ignored” by Michelson during meetings and the like.
(Def. R. 56.1 ¶ 307.) Plaintiff places particular emphasis
on her own reactions, noting that Michelson “berated
her and frightened her, reduced her to tears to the point
where she could not leave her office.” (See Plaintiff's
Memorandum of Law in Opposition to Defendant's
Motion for Summary Judgment (“Opp.”) at 21.) Plaintiff's
own reactions, however, even if credited by the jury as
true, cannot themselves demonstrate Michelson's gender
animus.
*8 Nor can Plaintiff sustain a prima facie case of
gender harassment here by pointing to the experiences
of other women at Fidelis. “The critical issue, Title
VII's text indicates, is whether members of one sex
are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not
exposed.” Oncale, 523 U.S. at 80 (citing Harris, 510
U.S. at 25) (emphasis added). While it is certainly true
that hostile work environment claims turn on a totality
of the circumstances which may include consideration
of conduct directed at other employees, see Cruz v.
Coach Stores, Inc., 202 F.3d 560, 572 (2d Cir.2000),
Plaintiff's invocation of co-workers Landes and Davis is
actually self-defeating as their own testimony supports the
notion that Michelson was in fact an “equal opportunity”
offender. (See Reply Memorandum of Law in Further
Support of Defendant's Motion for Summary Judgment
(“Def. Reply Mem.”) at 5–6.) Nowhere does Plaintiff
actually allege that Landes or Davis were yelled at because
they were female. Both Landes and Davis themselves
testified that their encounters with Michaelson were
gender-neutral and that Michelson also treated male
employees harshly. (Def. R. 56 .1 ¶¶ 100, 110–12, 115.)
Landes testified that Michelson spoke harshly to male
employees Boardman and Weinberg to such extent that
Boardman felt the situation needed to be addressed with

Human Resources. (Id. ¶ 111.) Davis herself testified that
she personally observed Michelson yelling at Weinberg
during a management meeting. (Id. ¶ 112.) Moreover,
Plaintiff herself testified that she felt Michelson respected
her, at least through May 2006, (id. ¶ 56), and also
testified that female co-workers Klotz, Trainor, and
Tucker had positive interactions with Michelson and she
never witnessed those individuals treated in a hostile
manner. (Id. ¶ 183.)
It is not controversial that Casalino may offer “direct
comparative evidence about how the alleged harasser
treated members of both sexes in a mixed-sex workplace”
as an “evidentiary route” to raising an inference of
discriminatory intent. See Oncale, 523 U.S. at 80–81.
Moreover, a jury is certainly permitted to find gender
motivation on the basis of disparate treatment itself,
derogatory verbal comments alone, or a combination of
both. See Pucino v. Verizon Wireless Commc'ns, Inc., 618
F.3d 112, 117–19 (2d Cir.2010). The problem in this case is
that Plaintiff has offered insufficient evidence of either to
permit a reasonable jury to find that Michelson's conduct
occurred because of her gender.
Even if Plaintiff could establish that Michelson's conduct
occurred because of her gender, Plaintiff cannot establish
to the extent she must that the conduct was sufficiently
“severe or pervasive” within the meaning of Title VII.
Among the factors courts look to in assessing the
severity of any alleged harassment are “the frequency
of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with
an employee's work performance.” Harris, 510 U.S. at
23. The Court of Appeals has said that one incident is
generally insufficient to support a harassment claim unless
it constitutes “an intolerable alteration of the plaintiff's
working conditions ... so as to substantially interfere with
or impair his ability to do his job.” Mathirampuzha v.
Potter, 548 F.3d 70, 79 (2d Cir.2008). For the reasons
described above, Plaintiff's allegations essentially reduce
to the single September 2006 incident in which Michelson
engaged in a verbal altercation with her. (Def. R. 56.1 ¶¶
139–183.) But Plaintiff continued to work with Michelson
through his leave of absence in November 2006 and
Plaintiff offers no evidence at all that any further exchange
of that sort took place between them. (Def. R. 56.1
¶¶ 182, 204–08 .) The Court finds that a reasonable
jury could not conclude, on the evidence Plaintiff has

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brought forward on this motion, that this incident resulted
in an “intolerable alteration of the plaintiff's working
conditions.” See Mathiramphuzha, 548 F.3d at 79.
*9 As to additional instances of harassment to which
Plaintiff refers, “the objective severity of [the] harassment
should be judged from the perspective of a reasonable
person in the plaintiff's position, considering ‘all of
the circumstances.’ “ Oncale, 523 U.S. at 81 (citing
Harris, 510 U.S. at 23). Plaintiff alleges that Michelson
“marginalized” her during meetings, did not let her discuss
certain meeting agenda items, and generally made her
job more difficult. (Def. R. 56.1 ¶ 307.) The evidence
put forward in response to this motion, however, is
unspecific as to when the marginalization occurred, which
agenda items were not discussed, or how exactly her
job was made more difficult. (See Memorandum of
Law in Support of Defendant's Motion for Summary
Judgment (“Def.Mem.”) at 7–8.) While specific details
as to every single incident alleged may not be necessary
to find harassment severe or pervasive, see Pucino, 618
F.3d at 119–20, the evidentiary record here is broadly
deficient of such details. The Court agrees with Defendant
that, unlike Pucino, Plaintiff does not offer evidence of
harassment which when reviewed in its totality could
have affected “most of the major aspects of [Plaintiff's]
employment.” (See Def. Reply Mem. at 4–5 (citing Pucino,
618 F.3d at 119).)
Moreover, the Court notes that it cannot wholly divorce
the question of whether harassment is severe or pervasive
from the question of whether the harassment itself is
based on gender. As noted above, abusive incidents that
are not gender-related are irrelevant to establish a claim
against Fidelis that can survive its motion for summary
judgment. See Norris, 2004 WL 1087600, at *12. Such
incidents are equally irrelevant in assessing the severity or
pervasiveness of any harassment for Title VII purposes.
Based on the current record, the Court concludes that
no reasonable jury could find that Michelson subjected
Plaintiff to gender-based harassment that was severe or
pervasive. 2
2

Because the Court finds that Plaintiff's prima facie
case of harassment does not survive summary
judgment, the Court need not address whether
Michelson's behavior, had it violated Title VII, could
be inputed to Fidelis under Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633

(1998) and Faragher v. City of Boca Raton, 524 U.S.
775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

Finally, the Court's grant of summary judgment on
Plaintiff's harassment claim for Title VII purposes merits a
similar grant on Plaintiff's NYCHRL claim. A NYCHRL
hostile work environment claim requires that Plaintiff
prove “by a preponderance of the evidence that she has
been treated less well than other employees because of
her gender.” Williams v. N.Y.C. Hous. Auth., 61 A.D.3d
62, 872 N.Y.S.2d 27, 39 (1st Dep't 2009) (emphasis
added). While it is true that the NYCHRL moves the
consideration of severity and pervasiveness from the
liability to the damages phase of trial, see id. at 39–40, it
remains a requirement of the claim that any harassment
be “because of” Plaintiff's gender. Id. at 39. The New
York Appellate Division, First Department also recently
made clear that summary judgment remains available if
a plaintiff's claim of severity is not borderline. See id. at
41 (“[W]e assure employers that summary judgment will
still be available where they can prove that the alleged
discriminatory conduct in question does not represent
a ‘borderline’ situation but one that could only be
reasonably interpreted by a trier of fact as representing
no more than petty slights or trivial inconveniences.”);
see also Short v. Deutsche Bank, 79 A.D.3d 503,
913 N.Y.S.2d 64, 66 (1st Dep't 2010) (“The various
complaints about [harasser's] conduct in the workplace
were nothing more than non-actionable petty slights and
minor inconveniences which in any event may be viewed
by a reasonable employee as a function of [harasser's]
management style, unrelated to gender discrimination,”
citing Williams, 872 N.Y.S.2d at 41). Because the Court
has already determined that Plaintiff cannot establish
that Michelson's conduct occurred because of gender, the
Court also concludes that Plaintiff fails the NYCHRL
summary judgment standard on this harassment claim.
Accordingly, Defendant's motion for summary judgment
on the NYCHRL harassment claim is also granted.

2. Retaliation Claim
*10 Plaintiff alleges that Fidelis illegally retaliated
against her following her complaint about Michelson.
Specifically, she points to her October 2006 performance
review, her “marginalization” at work, and her January
3, 2007 termination. Retaliation claims are analyzed
under the standard set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–04, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). In order to survive summary

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judgment on a Title VII retaliation claim, Plaintiff must
offer sufficient evidence to permit a reasonable jury to
find that (1) she engaged in a protected activity known
to Fidelis; (2) Fidelis took an adverse employment action
against her; and (3) that “a causal connection exists
between the protected activity and the adverse action,
i.e., that a retaliatory motive played a part in the adverse
employment action.” Kessler v. Westchester Cnty. Dep't of
Soc. Servs., 461 F.3d 199, 205–06 (2d Cir.2006) (citation
omitted). If a prima facie case is established, the burden
shifts to the employer to present a legitimate, nondiscriminatory reason for any adverse employment action.
See Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir.1998),
abrogated on other grounds by Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d
633 (1998). Once an employer satisfies this burden of
production, all presumptions drop out, and the plaintiff
bears the burden of persuasion in showing that the
employer's proffered reason for the adverse employment
action is merely a pretext for retaliation. Id. Plaintiff's
NYCHRL claim is analyzed using a substantially similar,
though more liberalized framework. See, e.g., DeMarco v.
CooperVision, Inc., 369 Fed. Appx. 254, 255 (2d Cir.2010);
Williams, 872 N.Y.S.2d at 33–34.

a. Protected Activity
Here, Plaintiff argues that she engaged in protected
activity within the meaning of Title VII when she had
a September 13, 2006 meeting with Chief Legal Officer
and Corporate Compliance Officer Regina Trainor and
Associate Director of Corporate Compliance Robert
Fazzolari in which she reported the September 8, 2006
altercation with Michelson. (P. 56.1 ¶ 464.) Plaintiff
alleges specifically that she informed Trainor and
Fazzolari that “there were women that were afraid to
be in the office with Michelson” and said “you have a
problem employee who behaves inappropriately towards
women and you are now on notice from me that you
have to do something about him.” (Id. ¶¶ 464–67.) Fidelis
does not seriously dispute these facts, except to clarify
that Plaintiff's testimony was that she informed Tucker
in Human Resources that “there were women that were
afraid to be in the office with Michelson,” rather than
Trainor or Fazzolari in the September 13 meeting. (See
Def. Reply 56.1 ¶ 464.) Fidelis also points out that
while Trainor later testified that she remembered Plaintiff
“putting her on notice, she understood her to mean that
she was putting her on notice that Michelson would raise
his voice, not that she was raising claims of unlawful

harassment.” (Id. ¶ 466, 872 N.Y.S.2d 27.) Plaintiff does
separately allege that on September 8, 2006 she said to
Tucker, “he can't treat people like this, he can't treat
women like this. This is what he did to Vicki. I know he
did this to Sue. He has done it to other women.” (P. 56.1
¶ 457.) Fidelis does not dispute this testimony.
*11 To a lesser extent, Plaintiff alleges that she engaged
in protected activity when she separately discussed with
Tucker the issues her colleague Vicki Landes had dealing
with Michelson. Specifically, Plaintiff alleges that Tucker
came to her office in May 2006 after an incident involving
Landes and Michelson and said she wanted to discuss the
situation. (Pl. 56.1 ¶ 387.) Plaintiff told Tucker “she had
spoken with Landes and found it upsetting that Landes
was so frightened about the incident.” (Id.) Plaintiff told
Tucker she would do whatever she could to help. (Id. ¶ 388,
872 N.Y.S.2d 27.) Fidelis does not dispute this testimony.
In the context of a Title VII retaliation claim, “ ‘[p]rotected
activity’ includes opposition to a discriminatory
employment practice or participation in any investigation,
proceeding, or hearing under Title VII.” Hubbard v. Total
Commc'ns, Inc., 347 Fed. Appx. 679, 680–81 (2d Cir.2009).
It is clearly established that “informal complaints to
supervisors constitute protected activity under Title VII.”
Sclafani v. PC Richard & Son, 668 F.Supp.2d 423, 427
(E.D.N.Y.2009); see also Amin v. Akzo Nobel Chemicals,
Inc., 282 Fed. Appx. 958, 961 (2d Cir.2008); Cruz, 202
F.3d at 566; Sumner v. U.S. Postal Serv., 899 F.2d 203,
209 (2d Cir.1990). Here, Plaintiff complained about what
she perceived, rightly or wrongly, to be Michelson's gender
animus to the head of Human Resources, the Chief
Legal Officer, and the Associate Director of Corporate
Compliance. (See P. 56.1 ¶¶ 387–88, 464–67.) These
complaints, even if informal, fall within the accepted
definition of protected activity for Title VII purposes.
To establish that an employee engaged in protected
activity sufficient to establish a retaliation claim, however,
the employee must also demonstrate:
that she had a good faith,
reasonable,
belief
that
the
underlying challenged actions of the
employer violated the law ... In
this regard, the reasonableness of
plaintiff's belief is assessed in light of
the totality of the circumstances ...
The employee's belief that [s]he was

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opposing an employment practice
made unlawful by Title VII must
also be objectively reasonable, in the
sense that the asserted opposition
must be grounded on sufficient
evidence that the employee was
the subject of discrimination and
harassment at the time the protest to
the offending conduct is registered.
Spadola v. N.Y.C. Transit Auth., 242 F.Supp.2d 284,
291 (S.D.N.Y.2003); see also Sullivan–Weaver v. N.Y.
Power Auth., 114 F.Supp.2d 240, 243 (S.D.N.Y.2000)
(“Mere subjective good faith belief is insufficient, the
belief must be reasonable and characterized by objective
good faith.”). Whether Plaintiff's belief was objectively
reasonable for this purpose is a decision for the trierof-fact based on the record in the case. See Thomas
v. Westchester Cnty. Health Care Corp., 232 F.Supp.2d
273, 279 (S.D.N.Y.2002). Thus, although the Court has
already determined, supra, that Michelson's conduct did
not constitute a violation of Title VII, the question on
the retaliation claim is whether Plaintiff possessed a good
faith, reasonable belief that it did. See Martin v. State
Univ. of N.Y., 704 F.Supp.2d 202, 228 (E.D.N.Y.2010).
*12 The language Plaintiff used in speaking with Tucker,
Trainor, and Fazzolari, supra, clearly identified her belief
that Michelson's behavior was differentiated on the basis
of gender, even if she did not make a formal complaint.
Plaintiff testified that over her almost two years working
with Michelson, she became aware that fellow female
employees Susan Davis, Vicki Landes, Liya Davidov,
and Nancy Kolodjeski each had experienced what they
felt was improper treatment by Michelson. (See P. 56.1
¶¶ 348–407.) Plaintiff also avers that, with respect to
Michelson's treatment of male employees, she “saw him
interact in a variety of settings with Dave Thomas, John
Olearczyk, Adrian Gardner, Michael Martelacci, Alan
Boardman, Rich Weinberg, Robert Osgood, and Jiong
Huang” and “never observed Michelson raise his voice
with a male employee in a manner remotely like he did
with her.” (P. 56.1 ¶¶ 410–11.) A reasonable jury could
find, therefore, that it was not objectively unreasonable
for Plaintiff to have concluded at the time she made
her complaints that Michelson behaved differently with
women than he did with men. Nor is the Court persuaded
that Defendant's several arguments in its papers, (see, e.g.,
Def. Mem. at 15), completely eliminate any possibility
that Plaintiff's subjective view was reasonable. The fact

that Michelson never mentioned gender in pejorative
terms and often had positive interactions with Klotz,
Trainor, and Tucker, (Def. 56.1 ¶¶ 183), while ultimately
probative on the merits, does not itself make Plaintiff's
belief unreasonable. Nor is Plaintiff's conversation with
Tucker about Landes not actionable merely because
Landes herself never lodged a formal complaint. (See Def.
Mem. at 16.) A jury could certainly believe that Plaintiff,
armed with the knowledge available to her at the time of
her complaints, proceeded under the belief that Michelson
was impermissibly differentiating his conduct at Fidelis on
the basis of gender.
Finally, the Court notes that to the extent Plaintiff
engaged in protected activity under Title VII, Fidelis
possessed both constructive and actual knowledge of
it. Plaintiff's language, supra, was more than sufficient
to alert Human Resources and the Chief Compliance
Officer that Plaintiff was making a complaint sounding
in gender discrimination. Because Plaintiff complained to
the individuals tasked with investigating such complaints,
(see Def. 56.1 ¶¶ 34–45), Fidelis' knowledge may be
imputed. See Triola v. Snow, 289 Fed. Appx. 414, 417 (2d
Cir.2008). Particularly in light of her choice of language
in the September 13, 2006 meeting with Trainor and
Fazzolari, there can be no serious dispute that “plaintiff's
opposition was directed at conduct prohibited by Title
VII” and by the NYCHRL. See, e.g., Galdeiri–Ambrosis v.
Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998).

b. Adverse Employment Action
In order to be considered actionable in the retaliation
context, an employer's action following Plaintiff's
protected activity must be “materially adverse” enough to
“dissuade a reasonable worker from making or supporting
a charge of discrimination.” Burlington Northern & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165
L.Ed.2d 345 (2006). This standard is intended to “separate
significant from trivial harms” because Title VII “does
not set forth ‘a general civility code for the American
workplace.’ “ Id. at 68 (quoting Oncale, 523 U.S. at 80).
Even the NYCHRL, which contains no material adversity
requirement, nonetheless insists that any such employer
action “reasonably deter a person from engaging in
protected activity.” See Williams, 872 N.Y.S.2d at 34.
Here, Plaintiff points to her “marginalization” at work,
her October 2006 performance review, and her January 3,
2007 termination. The Court addresses each in turn.

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*13 First, the Court must dispose of any attempt
by Plaintiff to characterize her “marginalization” by
Michelson in this case as an adverse employment action
within the meaning of Title VII or the NYCHRL.
For the reasons described above, supra, Plaintiff has
simply failed to adduce evidence of sufficient weight
and specificity to support a claim of retaliation on that
basis. Moreover, the Court is mindful that any such
marginalization, at least under the evidence produced
in this case to date, is likely characterized as a “trivial
harm.” Burlington, 548 U.S. at 68; see also Mabry
v. Neighborhood Defender Serv., 769 F.Supp.2d 381,
399 (S.D.N.Y.2011) ( “Plaintiff's allegation that he was
excluded from management meetings, when considered
in context, does not constitute an adverse employment
action.”); Short, 913 N.Y.S.2d at 66.
More compelling is Plaintiff's allegation that her October
2006 performance review and her January 3, 2007
termination were adverse employment actions within the
meaning of Title VII and the NYCHRL. It is certainly
true that a poor review which results in no further
adverse action cannot be deemed sufficient to dissuade
a reasonable person from complaining of discriminatory
treatment. See Ragin v. East Ramapo Cent. Sch. Dist.,
No. 05 Civ. 6496, 2010 WL 1326779, at *17, aff'd, 417
Fed. Appx. 81 (2d Cir.2011); Martinez–Santiago v. Zurich
N. Am. Ins. Co., No. 07 Civ. 8676, 2010 WL 184450,
at *11 (“A reasonable employee would not be dissuaded
from filing a discrimination complaint merely because
her supervisor gave her constructive employment-based
criticism.”). Here, however, Plaintiff specifically alleges
that her October 2006 performance review was expressly
the precursor for her January 2007 termination and differs
markedly from her generally positive March 2006 review.
(See P. 56.1 ¶¶ 188, 195; Opp. at 31.) Under Plaintiff's
theory of the case, both the October 2006 performance
review and the January 2007 termination are therefore
related and “materially adverse” employment actions
within the meaning of Title VII and NYCHRL. See
Burlington, 548 U.S. at 57. The arguments Defendant
makes regarding whether the termination in particular
was in any way related to the performance review, (see,
e.g., Def. Reply Mem. at 12), are more appropriately left
for the discussion of pretext and causation.

c. Causation and Pretext
Finally, in order to establish a prima facie case of
retaliation under Title VII, Plaintiff must demonstrate

“a causal connection exists between the protected
activity and the adverse action, i.e., that a retaliatory
motive played a part in the adverse employment
action.” Kessler, 461 F.3d at 205–06 (citation omitted).
For convenience, the Court analyzes the causation
requirement on Plaintiff's prima facie case together with
her ultimate burden of persuasion in rebutting Fidelis'
non-discriminatory reasons for her negative review and
subsequent termination. 3
3

For the purposes of this motion, the Court assumes
that Fidelis has satisfied its burden of production
in offering a legitimate, nondiscriminatory reason
for Plaintiff's negative review in October 2006 and
termination in January 2007. See McDonnell Douglas,
411 U.S. at 800. The Court of Appeals has made clear
that Fidelis' burden of production is relatively light.
See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52
(2d Cir.1998) (“The employer need not persuade the
court that it was motivated by the reason it provides;
rather, it must simply articulate an explanation that,
if true, would connote lawful behavior.”).

*14 A plaintiff alleging a causal connection between
a protected activity and an adverse employment action
must demonstrate evidence of “retaliatory animus by the
decision-makers who engaged in the adverse employment
actions.” Ragin, 2010 WL 1326779, at *24. Michelson
took a personal leave of absence beginning November
1, 2006, at which point Klotz became the Acting Chief
Medical Officer. (Def. 56.1 ¶¶ 204, 211.) Fidelis submits
that Klotz testified that after becoming Acting Chief
Medical Officer, she became concerned that Plaintiff
had “significant problems with systems, multitasking
and managing people in her department.” (Def. 56.1
¶ 288.) She also testified that she found that Plaintiff
“consistently blamed others for problems while refusing
to take responsibility for her role in them or for failing
to oversee processes and individuals.” (Def. 56.1 ¶ 289.)
Based on her observations and the input of Frawley,
Klotz concluded that she needed to terminate Plaintiff
immediately and was the sole decision maker in doing so.
(Def. 56.1 ¶¶ 290–91, 298.) For example, Klotz testified
that she viewed Frawley's memo as “informational only,
and not as a directive as to how to handle Plaintiff's
employment.” (Def. 56.1 ¶ 287.) Critically, Klotz testified
that at “no time during [her] employment with Fidelis was
she aware that Plaintiff had made an internal complaint
about Dr. Michelson's behavior with regard to the BCAP
project or at all for that matter.” (Def. 56.1 ¶ 215.)

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These facts might ordinarily be fatal to Plaintiff's claim
because in most cases where a decision maker cannot
be shown to have been aware of the protected activity,
any adverse employment action she undertakes is not
causally related to that protected activity. See Ragin, 2010
WL 1326779, at *24. Plaintiff, however, disputes material
facts as set out by Defendant in its 56.1 Statement. In
particular, Plaintiff argues that Fidelis had resolved to
terminate Casalino upon Michelson's return from his
leave of absence and then went about the process of
establishing a pretextual record to support that action.
(See, e.g., P. 56.1 ¶ 285.) In addition to pointing out
the extent to which Defendant shapes certain of Klotz's
testimony in its 56.1 Statement, Plaintiff specifically points
to several additional disputed facts: (1) In response to
Frawley's e-mail, Trainor sent an e-mail to Klotz, copying
Michelson, Lane, Frawley, and Casalino that did not
mention any concern over Plaintiff's “ability to act as a
supervisor”, (P. 56.1 ¶ 286); (2) by the time Klotz returned
to work from a vacation on January 3, 2007, it was Lane
who had already replaced Plaintiff as medical director at
Center Care, (P. 56.1 ¶ 287); (3) Klotz actually testified
that prior to arriving to work on January 3, 2007, she
had “no plans” to terminate Casalino, that she in fact
viewed the Frawley memo and Trainor e-mail as “the
final straw” in her decision to terminate Plaintiff, and
that she could not remember what else, if anything, she
reviewed that day, (Pl. 56.1 ¶ 287–88); (4) Klotz spoke with
Michelson in the office the day Plaintiff was terminated,
(P. 56.1 ¶ 290); (5) Trainor testified that a meeting was
convened on January 3, 2007 which included Trainor,
Lane, Frawley, and perhaps even included Michelson, in
which “a decision was reached at the meeting to terminate
Casalino, and that Klotz would do it,” (P. 56.1 ¶¶ 190–
92); and (6) Michelson participated in Lane's decision
to remove Plaintiff as medical director of Center Care
when Lane asked Michelson to “review and comment”
on his memo of January 2, 2007 announcing the Center
Care change, to which Michelson replied, “Looks good.
Is the ‘unspoken’ message too obvious?” (P. 56.1 ¶ 293).
In light of these apparently disputed facts, the Court
cannot agree with Defendant that Plaintiff “does not cite
a single admissible fact in support” of her theory that
“the facts support an inference that either Klotz was not
the decision-maker or that she was strongly influenced by
Lane, Frawley, Trainor and Michelson, and by the input
of Michelson reflected in the October review.” (See Def.
Reply Mem. at 13; Opp. at 33–34.) Because the Court

has already determined that Fidelis was on constructive
notice of Plaintiff's protected activity, supra, Plaintiff's
theory is sufficiently compelling. Moreover, the Court
of Appeals has elsewhere instructed that under the
McDonnell Douglas framework, “[t]o make out a prima
facie case is not a demanding burden.” Greenway, 143 F.3d
at 52.
*15 There is no doubt that certain of Plaintiff's proffered
evidence is circumstantial, but circumstantial evidence
on the issue of causation and in rebutting Fidelis'
non-discriminatory motive for Plaintiff's termination is
permissible. See, e.g., Henry v. Wyeth Pharmaceuticals,
Inc., 616 F.3d 134, 148 (2d Cir.2010), cert. denied, –––
U.S. ––––, 131 S.Ct. 1602, 179 L.Ed.2d 516 (2011)
(“A causal connection is sufficiently demonstrated if the
agent who decides to impose the adverse action but is
ignorant of the plaintiff's protected activity acts pursuant
to encouragement by a superior (who has knowledge) to
disfavor the plaintiff.”); Gordon v. N.Y.C. Bd. Of Educ.,
232 F.3d 111, 117 (2d Cir.2000) (“A jury, however, can
find retaliation even if the agent denies direct knowledge
of a plaintiff's protected activities, for example, so long as
the jury finds that the circumstances evidence knowledge
of the protected activities or the jury concludes that an
agent is acting explicitly or implicit [sic] upon the orders of
a superior who has the requisite knowledge.”) (emphasis
added). This is true whether in establishing a prima facie
case or in satisfying her ultimate burden of persuasion
in the case. Gordon, 232 F.3d at 117. In fact, the Court
of Appeals in Gordon rejected the exact rule Defendant
advocates here: that Klotz's lack of personal knowledge
is itself fatal to Plaintiff's claim. See id. Defendant is
quick to characterize Plaintiff's theory of retaliation as a
“conspiracy,” (see Def. Reply Mem. at 14), apparently
losing sight of the fact that a successful fabrication of a
pretext for discrimination is often precisely that.
Moreover, Plaintiff is permitted to make her case for
causation at least in part on the temporal proximity
between engaging in the protected activities and suffering
an adverse employment action. See Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149
L.Ed.2d 509 (2001); Hubbard, 347 Fed. Appx. at 681
(finding that four months between protected activity and
adverse employment action did not exceed the “outer
limit” of when causation may be inferred from temporal
proximity); Green Tree Credit Corp., 159 F.3d 759, 769
(2d Cir.1998) (reversing summary judgment where an

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adverse employment action occurred within two months
of plaintiff's complaint to management). Here, Plaintiff
seeks to demonstrate that over a two-year engagement
at Fidelis, her protected activity, negative review, and
termination all took place in what was effectively a fourmonth period. Moreover, her negative evaluation came
less than a month after her complaint regarding Michelson
and differs not insubstantially from her generally positive
March 2006 performance review. Finally, when the time
Michelson spent out of the office on personal leave is
excluded, Plaintiff's January 3, 2007 termination follows
a mere two months after her September 2006 complaint
and October 2006 negative performance evaluation. It is
important to note too that Plaintiff is not building her
entire case-in-chief or rebuttal of pretext on temporal
proximity alone.
*16 Plaintiff may also demonstrate retaliatory intent
and an inference of causation with evidence of disparate
treatment of other employees engaging in the same or
similar conduct for which an adverse employment action is
purported to have occurred. See, e.g ., Raniola v. Bratton,
243 F.3d 610, 625 (2d Cir.2001); Gordon, 232 F.3d at 117.
Here, Plaintiff points as an example to two of the incidents
in December 2006 that Fidelis claims demonstrated her
inability to perform her position's functions, arguing
that her termination ultimately involved mistakes by
lower level employees far removed from Casalino through
intermediate supervisors. (See, e.g., Opp. at 34.) Plaintiff
notes that no other Fidelis employee besides her was
disciplined. (P. 56.1 ¶¶ 538, 564.) In Hubbard, the Court
of Appeals recently rejected a defendant's argument on
appeal that Hubbard had not presented sufficient evidence
to support a jury's conclusion that the defendant's reasons
for firing her were pretextual. See Hubbard, 347 Fed.
Appx. At 681. The defendant had proposed that Hubbard
had been terminated for “excessive personal Internet use,”
and Hubbard had established that other employees “used
the Internet as much, or more, than she did, and that only
she and two other women were monitored.” Id. The Court
of Appeals concluded that this showing was sufficient to
reach the jury. See id. (“The jury was entitled to find
that explanation to be pretextual.”). Here too, Fidelis
naturally offers an explanation for the disparity to which
Plaintiff points. (See, e.g., Def. Reply 56.1 ¶ 564 (arguing
that the incidents reflected “a pattern of problems with
Plaintiff's job performance”).) As in Hubbard, however,
that explanation can be weighed by a reasonable jury.

Finally, the Court observes that Plaintiff may rely on
circumstantial evidence of pretext. “[R]etaliatory intent
may also be shown in conjunction with the plaintiff's
prima facie case, by sufficient proof to rebut the employer's
proffered reason for the termination.” Parrish v. Sollecito,
258 F.Supp.2d 264, 268 (S.D.N.Y.2003) (citing Reeves,
530 U.S. at 143–49). The Court of Appeals has noted
that to survive summary judgment, a Title VII plaintiff
“has no obligation to prove that the employer's innocent
explanation is dishonest, in the sense of intentionally
furnishing a justification known to be false.” Henry, 616
F.3d at 156. Instead, the plaintiff need only show that
the defendant “was in fact motivated at least in part by
the prohibited discriminatory animus.” Id. (citing Gordon,
232 F.3d at 117) (emphasis added). It is well settled that
a plaintiff may do so “by demonstrating weaknesses,
implausibilities, inconsistencies, or contradictions in
the employer's proffered legitimate, nondiscriminatory
reason for its action.” Ramos v. Marriott Intern., Inc.,
134 F.Supp.2d 328, 343 (S.D.N.Y.2001) (citations and
alterations omitted); see also EEOC v. Ethan Allen, Inc.,
44 F.3d 116, 120 (2d Cir.1994); Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 39 (2d Cir.1994).
*17 Beyond the disciplinary inconsistency discussed
above, supra, Plaintiff provides a list of no fewer than
sixteen such inconsistencies that she argues are supported
by the record. Among the most salient are:
• The evaluation given to Plaintiff by Michelson in
October 2006 differed markedly from the evaluation
also given by Michelson in March 2006; Plaintiff's
protected activity occurred in September 2006 just
before the second evaluation. See, e.g., Ibok v. Sec.
Indus. Automation Corp., 369 Fed. Appx. 210, 213
(2d Cir.2010) (pretext may be demonstrated where
“evaluations of plaintiff post-dating the protected
activity contradict earlier evaluations”).
• All of the alleged grounds for termination, as detailed
by Fidelis, occurred during a ten-day period at the
end of December 2006. (P. 56.1 ¶¶ 518–81.)
•

Plaintiff was terminated immediately
Michelson's return from his leave of absence.

upon

• Klotz, Plaintiff's supervisor, had complimented
Plaintiff's work in December 2006 prior to leaving
for vacation, (P. 56.1 ¶¶ 500–07), and testified that
she returned to Fidelis on January 3, 2007 with no

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12

Casalino v. New York State Catholic Health Plan, Inc., Not Reported in F.Supp.2d (2012)
2012 WL 1079943

intention of terminating Casalino, (P. 56.1 ¶¶ 590–
91).
• Though Fidelis represents that Klotz herself made the
decision to terminate Plaintiff for cause on January
3, 2007, Lane had already decided to appoint Klotz
to replace Plaintiff as medical director of Center Care
on January 2, 2007. (P. 56.1 ¶ 605.)
• Though Fidelis represents that Klotz herself made the
decision to terminate Plaintiff for cause on January
3, 2007, both Frawley and Trainor circulated critical
memos and Trainor testified that a meeting was
convened on January 3, 2007 which included Trainor,
Lane, Frawley, and may have included Michelson,
in which “a decision was reached at the meeting to
terminate Casalino, and that Klotz would do it.” (P.
56.1 ¶¶ 190–92, 594–98.)
• Lane solicited Michelson's response to a draft of
the January 2, 2007 announcement e-mail, indicating
that they had already discussed Plaintiff's place
in the department, to which Michelson replied,
“Looks good. But is the ‘unspoken’ message too
obvious?” (P. 56.1 ¶¶ 583–89.)
• Despite Fidelis' announcement on January 2, 2007
that Klotz would be talking over as medical director
of Center Care, Klotz later testified that she never
actually held that position, but served only until
Plaintiff's replacement, Dr. Jonathan Kaplan, was
selected. (P. 56.1 ¶¶ 603–06.)
• Fidelis ignored its own “corrective action” policy set
forth in detail in its Employee Handbook; Plaintiff
was terminated without any written warnings issued
under the policy. (P. 56.1 ¶¶ 331–36, 600.)
(See Opp. at 35–37.) Plaintiff's position is that
taken together, the record includes sufficient material,
comprised of permissible temporal proximity evidence,
circumstantial evidence of disparate treatment of
employees, and circumstantial evidence of pretext to
establish that retaliation was, at least “in part,” a reason
for her termination in January 2007. See Henry, 616 F.3d
at 156. The same evidence goes to pretext. See Gordon, 232
F.3d at 117. Given the Court of Appeals' recent holding in
Hubbard, 347 Fed. Appx. at 681, this Court is constrained
to find that true questions of fact exist as to whether,
among other issues, Klotz was the actual decision maker
in Plaintiff's termination, said termination was actually

the result, at least in part, of Plaintiff's protected activity
under Title VII, and whether Fidelis' stated legitimate
nondiscriminatory reasons are merely pretextual.
*18 On a motion for summary judgment on a Title VII
claim, the Court of Appeals has made perfectly clear that
Plaintiff need not, as Fidelis appears to suggest, (see Def.
Mem. at 24–25 (citing Weinstock, 224 F.3d at 42; James
v. N.Y. Racing Ass'n, 233 F.3d 149, 156 (2d Cir.2000)),
actually demonstrate that Fidelis' proffered reasons for
her termination were themselves purely false. See Henry,
616 F.3d at 156. Rather, the question is whether, based
on the evidentiary showing to date, Plaintiff may “invite
the jury to ignore the defendant's proffered legitimate
explanation and conclude that discrimination was a
motivating factor, whether or not the employer's proffered
explanation was also in the employer's mind .” See Field
v. N.Y.S. Office of Mental Retardation & Developmental
Disabilities, 115 F.3d 116, 121 (2d Cir.1997). Resolving all
ambiguities and drawing all reasonable inferences against
Fidelis, as this Court must, Lindsay, 581 F.3d at 50, the
Court cannot conclude “that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” See Fed.R.Civ.P. 56(a).

d. NYCHRL Retaliation Claim
Retaliation claims under the NYCHRL are to be liberally
construed, do not require an “ultimate action” with
respect to employment or a “materially adverse change
in the terms or conditions of employment,” and are
not restricted to the “standard currently applied by
the Second Circuit in [Title VII] retaliation claims.”
Williams, 872 N.Y.S.2d at 33–34 (citations omitted).
Accordingly, because the Court has found Plaintiff's Title
VII retaliation claim survives Fidelis' motion for summary
judgment, so too does Plaintiff's NYCHRL retaliation
claim.

3. Gender–Based Discrimination: Disparate Treatment
To state a prima facie case for gender-based disparate
treatment discrimination, Plaintiff must demonstrate: (1)
membership in a protected class; (2) that she was qualified
for her position; (3) that she experienced an adverse
employment action; and (4) circumstances surrounding
the adverse employment decision that give rise to an
inference of discrimination. See Gregory, 243 F.3d at 689.
As with the retaliation claim above, Plaintiff's disparate
treatment claim is analyzed using the framework laid out

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13

Casalino v. New York State Catholic Health Plan, Inc., Not Reported in F.Supp.2d (2012)
2012 WL 1079943

in McDonnell Douglas. If Plaintiff establishes a prima facie
case, Fidelis may proffer a legitimate, non-discriminatory
reason for the alleged adverse employment action. See
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
252–56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If Fidelis
meets this burden, Plaintiff must then establish, by a
preponderance of the evidence, that Fidelis' stated reasons
are merely pretext for discrimination. See id.
In order to establish her prima facie case of disparate
treatment discrimination, it is critical that Plaintiff
demonstrate that any adverse actions taken against her
were done under circumstances “giving rise to an inference
of discrimination” based on her gender. See Leibowitz
v. Cornell Univ., 584 F.3d 487, 498 (2d Cir.2009). This
element is critical in analyzing the NYCHRL claim as
well. See Williams, 872 N.Y.S.2d at 41 (“[T]he primary
issue for a trier of fact ... is whether the plaintiff has
proven by a preponderance of the evidence that she has
been treated less well than other employees because of
her gender.” ) (emphasis added). Such inferences may
be drawn from direct evidence, statistical evidence, or
circumstantial evidence. See generally Sogg v. American
Airlines, 193 A.D.2d 153, 603 N.Y.S.2d 21 (1st Dep't
1993). They must, however, be more than inferences that
Plaintiff's termination was erroneous or unsupported by
the facts alleged—they must be inferences that gender
discrimination itself was a reason for the termination.
See, e.g., Babcock v. N.Y.S. Office of Mental Health, No.
04 Civ. 2261, 2009 WL 1598796, at *15 (“The fact that
[employer] may have relied on incorrect information is
immaterial to [Plaintiff's] gender discrimination claim.”).
For the reasons the Court has already identified in
discussing her gender harassment allegations under Title
VII and NYCHRL, supra, Plaintiff has simply failed to
adduce sufficient factual material to allow a reasonable
jury to conclude that any adverse action was taken against
her specifically on the basis of her gender, outside the
specific context of retaliation for protected activities.
*19 This Court rejects Plaintiff's proposed reading of
Meiri v. Dacon, 759 F.2d 989 (2d Cir.1985), cert. denied,
474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985),
which Plaintiff suggests permits her to “establish the
End of Document

inference of discrimination (element four) by showing
merely that the employer sought a replacement for her
position.” (See Opp. at 38.) That is not the Court of
Appeals' holding. Instead, the Court of Appeals held
that Plaintiff need not establish that she was replaced by
someone outside her own protected class as a condition of
surviving summary judgment. See Meiri, 759 F.2d at 996
(“Assuming arguendo that Meiri did in fact offer evidence
sufficient to defeat summary judgment at the prima facie
stage, we must now address whether the INS satisfied
its burden of rebuttal .”) (footnote omitted). Similarly,
Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81 (2d
Cir.1996), merely clarified that Meiri does not support
a rule requiring Plaintiff to demonstrate on summary
judgment that her position remained open and that Fidelis
continued to seek other applicants. See id. at 91. In any
event, neither holding eliminates the requirement that
Plaintiff adduce sufficient evidence to permit a reasonable
jury to conclude that she was terminated because of her
gender.
Absent other direct, circumstantial, or statistical evidence,
Plaintiff has failed to produce sufficient evidence that
any adverse employment action Fidelis undertook had
an impermissible basis in gender as required by Title VII
and the NYCHRL to establish a prima facie disparate
treatment claim. See Leibowitz, 584 F.3d at 498; Williams,
872 N.Y.S.2d at 41. Accordingly, Fidelis' motion for
summary judgment on these claims is granted.

CONCLUSION
For the reasons stated above, Defendant's Rule 56 motion
for summary judgment [dkt. no. 37] is GRANTED in part
with prejudice and DENIED in part. The parties shall
confer and inform the Court by letter no later than April
6, 2012 how they propose to proceed.

SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 1079943
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14

Kastle v. Town of Kent, N.Y., Not Reported in F.Supp.3d (2014)
2014 WL 1508703

Plaintiffs also assert a state law wrongful death claim.
2014 WL 1508703
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Barbara B. KASTLE and Matthew L. Kastle,
individually and as Joint Administrators of the
Estate of Michael W. Kastle, Deceased, Plaintiffs,
v.
The TOWN OF KENT, NEW
YORK, et al., Defendants.
No. 13 CV 2256(VB).
|
Signed March 21, 2014.
Opinion
MEMORANDUM DECISION

Now pending are the Kent Defendants' motion to dismiss
under Rules 12(b)(1) and 12(b)(6) (Doc. # 22), the Putnam
Defendants' motion to dismiss under Rule 12(b)(6) (Doc.
# 26), and the East Fishkill Defendants' motion to dismiss
under Rule 12(b)(6) (Doc. # 31).
For the following reasons, each motion is GRANTED in
part and DENIED in part.
The Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1331.

BACKGROUND
For purposes of deciding the pending motions, the Court
accepts all well-pleaded factual allegations in the amended
complaint as true and draws all reasonable inferences in
favor of plaintiffs.

BRICCETTI, District Judge.
*1 Plaintiffs Barbara B. Kastle and Matthew L. Kastle
bring this Section 1983 action against defendants the
Town of Kent, the Town of Kent Police Department,
Police Chiefs Donald L. Smith and Alex DiVernieri,
Police Sergeant Jerry Raneri, Police Officers Vincent
E. Bade, Chris Tompkins, Darren M. Cea, and
Alex VanderWoude, and “John Doe” police officers
(collectively, the “Kent Defendants”); the County of
Putnam, Sheriff Donald B. Smith, Deputy Sheriffs J.P.
Kerwick and Daniel Hunsberger, and “Michael Doe”
deputy sheriffs (collectively, the “Putnam Defendants”);
and the Town of East Fishkill, the Town of East Fishkill
Police Department, Police Chief Brian C. Nichols, Police
Captain Dwayne P. Doughty, Police Officers Kyle P.
Doughty, Daniel P. Didato, and Ryan J. Angioletti, and
“Mark Doe” police officers (collectively the “East Fishkill
Defendants”), arising out of a car accident involving
plaintiffs' deceased son, Michael W. Kastle (“Michael”),
and defendant Bade.
Plaintiffs assert constitutional claims for Fourth
Amendment violations, procedural and substantive due
process violations, conspiracy, abuse of process, and for
municipal liability as against the Town of Kent, the Town
of East Fishkill, and Putnam County.

Plaintiffs are Barbara and Matthew Kastle, the parents
of Michael Kastle, who died on April 8, 2012, at the age
of eighteen, after an apparent interaction of prescription
Xanax and a contraindicated narcotic painkiller.

I. The Car Accident and Related Proceedings
On April 27, 2011, Michael's car collided with Kent Police
Officer Vincent E. Bade's car in East Fishkill, New York.
Plaintiffs allege Bade was intoxicated and crossed into
Michael's lane of traffic, and Bade's alcohol consumption
was a significant factor in the accident. Defendants the
Town of Kent, and Kent Police Chiefs Donald L. Smith
and Alex DiVernieri were allegedly notified of the accident
and of the fact that Bade was driving while intoxicated
within a few minutes. “[T]o preserve the reputation”
of the Kent Police Department and Bade, plaintiffs
allege Donald L. Smith and DiVernieri directed Bade be
removed from the scene and spared interviews and bloodalcohol tests, and dispatched an unnamed Kent police
officer to the scene to coordinate with the East Fishkill
Defendants investigating the accident. (Am.Compl.¶¶ 30–
32).
*2 The unidentified Kent police officer arrived and, at
the request of Bade, Donald L. Smith and DiVernieri,
allegedly removed evidence from Bade's vehicle, including

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2014 WL 1508703

a briefcase and beer and/or liquor bottles. Plaintiffs
further allege the East Fishkill Defendants concealed
Bade's intoxication at the time of the accident “upon the
request” of the Kent Defendants. (Id. ¶ 38).
Plaintiffs allege that, between two and eight hours after
the accident, Bade was administered a breathalyzer
test revealing a blood alcohol content of 0.04%, which
plaintiffs contend implies Bade was legally intoxicated at
the time of the accident. Unspecified actors from East
Fishkill also allegedly advised Putnam County Sheriff
Donald B. Smith that Bade was impaired, but the Putnam
Defendants declined to investigate further. 1
1

Plaintiffs allege Bade was formerly employed by the
Putnam County Sheriff's Office and thus personally
knew the individual Putnam County Defendants.

During the investigation, Michael was allegedly confined
in a police vehicle and, later, isolated and interrogated
at the East Fishkill Police Station. He was charged with
various traffic offenses, allegedly on the basis on false
factual and expert statements submitted by Bade and
the East Fishkill Defendants, including “three separate,
inconsistent versions of the information affidavits and
depositions ... all of which knowingly and falsely claimed
that the accident was exclusively [Michael's] fault”
submitted by the East Fishkill Defendants. (Id. ¶¶ 56,
58(a), (c)).

II. The Alleged Campaign To Harass Michael
Immediately after the accident, defendants allegedly
“began a coordinated campaign to target, intimidate and
harass” Michael that persisted until Michael's death on
April 8, 2012, which arose out of their “collective and
collaborative desire to protect” Bade and to suppress
evidence of Bade's intoxication at the time of the accident.
(Id. ¶ 58).
The amended complaint includes the following allegations
in support of these claims:
• Over the eleven month period between the accident
and Michael's death, defendants “follow[ed] Michael
routinely, whenever he was driving alone” (Id. ¶
58(d)) and, between April 27 and June 23, 2011,
made “physical and verbal” threats that if anything
happened to Bade, “Michael would be arrested and
charged with murder, or otherwise harmed.” (Id. ¶
68).
*3 • Kent police officers frequently parked outside
Michael's house in patrol cars to observe and
“intimidate” him. (Id. ¶ 58(q)-(r)).
• Between April 27 and May 17, 2011, Michael's car
was impounded and searched without probable cause
by the Town of East Fishkill and, subsequently, by
Putnam County in June 2011.

Plaintiffs allege the East Fishkill Defendants also
pressured Michael to admit to causing the accident.
Throughout the investigation and subsequent court
proceedings, Michael and his minor passenger
“consistently maintained” Bade's vehicle had crossed into
Michael's lane, causing the accident. (Id. ¶ 48).

• On July 9, 2011, defendant Kent Police Officer Chris
Tompkins “attempted to run Michael off the road,”
detained him, and filed incorrect statements and false
traffic charges against him. (Id. ¶ 58(f)). DiVernieri
knew about these false statements but failed to
investigate them or to discipline Tompkins.

On November 16, 2011, Michael was tried for and
convicted of traffic violations relating to the accident.
Plaintiffs allege the conviction was based on incomplete
testimony from East Fishkill police officers, “who did
not disclose their finding that Bade was impaired at the
time of the accident,” or release written reports, even
though they were repeatedly asked to do so. (Id. ¶ 87).
Plaintiffs further allege the Town of East Fishkill denied
the existence of accident investigation records until after
Michael was convicted of charges relating to the accident
and the deadline for appealing the conviction had passed.

• In July 2011, after Michael's lawyer moved to dismiss
the charges arising out of the accident on the basis of
the inconsistent affidavits, a new ticket for crossing
a pavement marking, “backdated” to April 27, 2011,
was delivered to plaintiffs. (Id . ¶¶ 58(h), 72).
• During a court proceeding on July 30, 2011, the
East Fishkill Police Department refused to disclose
exculpatory evidence gathered during the accident
investigation.
• On August 23, 2011, Michael was detained and falsely
ticketed for “imprudent speed” without probable

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2

Kastle v. Town of Kent, N.Y., Not Reported in F.Supp.3d (2014)
2014 WL 1508703

cause when his car approached an accident scene at
which Tompkins was present. At the time, Tompkins
“was being investigated for his false statement
in connection with the July 9 stop,” and that
investigation, not traffic offenses, “was the reason”
Tompkins issued the ticket to Michael that day. (Id.
¶ 75).
• On September 15, 2011, Putnam County police
officers, including defendant Deputy Sheriff Daniel
Hunsberger, followed Michael from his school
to a Home Depot in Southeast. Hunsberger
arrested Michael in the store and charged him
with misdemeanor offenses, including petit larceny,
disorderly conduct, and resisting arrest. During the
arrest, Hunsberger “slammed Michael's face into
a wall,” injuring him. (Id. ¶ 83). Hunsberger also
falsely claimed in court documents that Michael had
apologized to Hunsberger for his conduct relating to
the accident.
• On October 27, 2011, six months after the accident,
Michael received a notice of a speeding ticket arising
out of the accident, issued without probable cause
and based on an affidavit of defendant East Fishkill
Police Officer Daniel P. Didato.
• In the fall of 2011, Kent police officers, including
Tompkins, Darren M. Cea, and Alex VanderWoude,
frequently followed Michael to and from school.
• In the fall of 2011 and winter of 2011–2012, Kent
police officers drove by Michael's house at night,
“shining strong lights into the windows” of his
bedroom. (Id. ¶¶ 58(p), 100–01).
• At some time during the winter of 2011–2012,
unspecified Kent police officers stopped Michael and
conducted an unlawful search of Michael and his car,
during which they observed a container of Michael's
prescription Xanax.
• In March 2012, Michael was driving with his
father, Matthew Kastle. Matthew Kastle observed
an unidentified Kent police officer speed up and
indicate Michael should pull over. When the officer
saw Matthew Kastle was in the car, he sped away.
*4 • On March 11, 2012, defendant Putnam County
Deputy J.P. Kerwick stopped Michael and ticketed

him on the basis of a false affidavit for failing to
signal.
• On March 30, 2012, Cea followed Michael to Michael's
friend's house, where Cea watched him as he “burned
tires ... with the consent of the homeowner.” As
Michael was leaving, Cea pulled him over and issued
a ticket for an “unsafe start,” failure to wear a
seatbelt, and driving with an obstructed view. (Id.
¶ 58(u)). At that time, Cea learned Michael had
retained a civil rights lawyer.
• The same day, Michael received a call from an
individual who encouraged Michael to “swap” some
of his prescription Xanax pills for a narcotic
painkiller. 2
2

Plaintiffs allege this individual was a confidential
informant, and that it was this particular painkiller
that interacted with Michael's prescription Xanax,
causing his death.

• Defendant Kent Police Sergeant Jerry Raneri advised
Barbara Kastle to stop filing FOIA requests seeking
public records relating to the arrests and tickets,
allegedly “implying Michael would continue to be
harmed” if she did not. (Id. ¶ 58(k).
III. Michael's Mental Health Treatment
On May 3, 2011, Michael experienced a panic attack and
was admitted to the hospital, after which he was treated
by mental health professionals. He began the course of
prescription Xanax treatment in June 2011.
After his driver's license was suspended on October 25,
2011, Michael “became profoundly depressed” (Id. ¶ 85)
and underwent psychotherapy. Michael was admitted to
the hospital for another panic attack on November 17,
2011.
Plaintiffs allege that in March 2012, Michael's
psychological condition worsened and he had difficulty
sleeping, eating, and taking care of himself and “became
markedly fearful, withdrawn and uncommunicative.” (Id.
¶ 105).
Michael experienced another panic attack on April 5,
2012, after receiving a notice to appear in court for the
March 11, 2012, traffic offense. Plaintiffs allege this panic

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3

Kastle v. Town of Kent, N.Y., Not Reported in F.Supp.3d (2014)
2014 WL 1508703

attack was brought on by the notice and, more generally,
by the alleged pattern of harassment.

process violations, conspiracy, abuse of process, and
Monell claims as to the municipal defendants.

IV. Michael's Death
Tragically, Michael died after being found unresponsive at
a friend's home on the morning of April 8, 2012. Plaintiffs
allege the Putnam County Sheriff's Office informed them
Michael's death was caused by an interaction of Xanax
with a contraindicated narcotic painkiller.

A. Fourth Amendment Claims
The Fourth Amendment, which applies to the states
through the Fourteenth Amendment, protects “[t]he right
of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures.' “ U.S. Const. amend. IV. “[T]he first step in
any Fourth Amendment claim (or, as in this case, any
section 1983 claim predicated on the Fourth Amendment)
is to determine whether there has been a constitutionally
cognizable seizure.” Medeiros v. O'Connell, 150 F.3d 164,
167 (2d Cir.1998).

DISCUSSION
I. Legal Standard
The function of a motion to dismiss is “merely to assess the
legal feasibility of the complaint, not to assay the weight of
the evidence which might be offered in support thereof.”
Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc.,
748 F.2d 774, 779 (2d Cir.1984) (internal quotation marks
omitted). In deciding a motion to dismiss pursuant to
Rule 12(b)(6), the Court evaluates the sufficiency of the
complaint under the “two-pronged approach” outlined
by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). First, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements,” are not entitled to the assumption of truth
and are thus not sufficient to withstand a motion to
dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150,
161 (2d Cir.2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
*5 To survive a Rule 12(b)(6) motion, the allegations
in the complaint must meet a standard of “plausibility.”
Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 564 (2007). A claim is facially
plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. at 678. “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Id.

II. Constitutional Claims
Plaintiffs assert constitutional claims for Fourth
Amendment violations, procedural and substantive due

1. False Arrests
“Indisputably, an arrest is a seizure.” Bryant v. City of
New York, 404 F.3d 128, 136 (2d Cir.2005). “To establish
a claim for false arrest under [Section] 1983, a plaintiff
must show that ‘the defendant intentionally confined him
without his consent and without justification.’ “ Escalera
v. Lunn, 361 F.3d 737, 743 (2d Cir.2004) (quoting Weyant
v. Okst, 101 F.3d 845, 852 (2d Cir.1996)). Probable
cause to arrest “is a complete defense to an action for
false arrest.” Bernard v. United States, 25 F.3d 98, 102
(2d Cir.1994). Probable cause exists when an officer
has “knowledge or reasonably trustworthy information
sufficient to warrant a person of reasonable caution in
the belief that an offense has been committed by the
person to be arrested.” Panetta v. Crowley, 460 F.3d 388,
395 (2d Cir.2006) (internal quotation marks omitted). In
determining whether an officer had probable cause, a
court examines the information available to the officer “at
the time of the arrest and immediately before it.” Lowth v.
Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir.1996).
Plaintiffs allege Michael was detained and questioned
without probable cause in connection with the
investigation of the Bade accident on April 27, 2011.
Plaintiffs concede, however, that Michael was eventually
convicted of the traffic violations arising out of that arrest.
This conviction bars plaintiffs' false arrest claim with
respect to the arrest on April 27, 2011. See Cameron v.
Fogarty, 806 F.2d 380, 388–89 (2d Cir.1986) (When “law
enforcement officers have made an arrest, the resulting
conviction is a defense to a § 1983 action asserting that the
arrest was made without probable cause.”).

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4

Kastle v. Town of Kent, N.Y., Not Reported in F.Supp.3d (2014)
2014 WL 1508703

*6 Plaintiffs also allege Michael was falsely arrested by
Putnam County Deputy Sheriff Daniel Hunsberger at a
Home Depot in Southeast on September 15, 2011, and

105–06 (2d Cir.2009) (internal citation and quotation
marks omitted).

that the arrest was without probable cause. 3 However, as
the Putnam Defendants argue, plaintiffs have not pleaded
any facts whatsoever concerning the circumstances of the
arrest or otherwise supporting an inference that Michael
was confined “without justification.” Escalera v. Lunn,
361 F.3d at 743. Plaintiffs merely allege Hunsberger
arrested Michael knowing the violations he was charging
Michael with were “false.” Such conclusory allegations
are not entitled to the assumption of truth. See Ashcroft
v. Iqbal, 556 U.S. at 679. Plaintiffs therefore have not
plausibly pleaded a false arrest claim against the Putnam
Defendants in connection with the arrest on September 15.

Here, plaintiffs allege Michael was stopped without
probable cause on July 9, 2011, when Kent Officer
Tompkins “attempted to run [him] off the road”
through “vehicular intimidation” and then detained
him. (Am.Compl.¶¶ 58(f), 70). On August 23, 2011,
plaintiffs allege Tompkins detained Michael again
without probable cause and issued a ticket for “imprudent
speed,” and that Tompkins did so because Tompkins
was being investigated in connection with the stop on
July 9, not because there was any traffic violation.
Plaintiffs further allege Michael was stopped without
probable cause and unlawfully frisked by Kent officers
while he was driving with friends during the winter of
2011–2012. Plaintiffs also allege Michael was stopped in
traffic without cause on two more occasions in March
2012, by Putnam Deputy Kerwick and Kent Officer Cea,
respectively. There are no allegations Michael resisted any
of these stops or attempted to flee.

3

As the Putnam Defendants correctly observe,
plaintiffs' opposition brief indicates Michael pleaded
guilty to disorderly conduct, but “not the higher
fabricated charges” arising out of this arrest. The
Putnam Defendants argue such a plea precludes
plaintiffs' false arrest claim relating to the Home
Depot arrest. The amended complaint does not
contain information about a plea and instead alleges
the charges relating to the arrest were ultimately
dismissed. However, because the Court dismisses
plaintiffs' false arrest claim relating to this arrest on
the basis of pleading deficiencies, it is unnecessary to
address this inconsistency.

Accordingly, plaintiffs' false arrest claims are dismissed.

2. Unreasonable Searches and Seizures
A Fourth Amendment “seizure” occurs when police
detain an individual under circumstances in which a
reasonable person would believe he or she is not at liberty
to leave. United States v. Mendenhall, 446 U.S. 544, 554
(1980). “Examples of circumstances that might indicate a
seizure, even where the person did not attempt to leave,
would be the threatening presence of several officers, the
display of a weapon by an officer, some physical touching
of the person of the citizen, or the use of language or
tone of voice indicating that compliance with the officer's
request might be compelled.” Id.
“A police officer's order to stop constitutes a seizure if a
reasonable person would have believed that he was not
free to leave, and the person complies with the officer's
order to stop.” United States v. Simmons, 560 F.3d 98,

These encounters constitute seizures within the meaning of
the Fourth Amendment. See, e.g., Terry v. Ohio, 392 U.S.
1, 19 (1968); Arizona v. Johnson, 555 U.S. 327, 327 (2009)
(“For the duration of a traffic stop ... a police officer
effectively seizes everyone in the vehicle, the driver and all
passengers.” (internal quotation marks omitted)).
*7 Investigatory stops (temporary detention) and frisks
(pat downs) may be conducted without violating the
Fourth Amendment's ban on unreasonable searches and
seizures if two conditions are met. Arizona v. Johnson,
555 U.S. at 326 (citing Terry v. Ohio, 392 U.S. at 19).
“[I]n a traffic-stop setting, the first Terry condition-a
lawful investigatory stop-is met whenever it is lawful for
police to detain an automobile and its occupants pending
inquiry into a vehicular violation.” Id. at 327; see also
Whren v. United States, 517 U.S. 806, 810 (1996) (“As
a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe
that a traffic violation has occurred .”). The police need
not have cause to believe an occupant is involved in
criminal activity. Arizona v. Johnson, 555 U.S. at 327. “To
justify a patdown of the driver or a passenger during a
traffic stop, however, ... the police must harbor reasonable
suspicion that the person subjected to the frisk is armed
and dangerous.” Id.

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Kastle v. Town of Kent, N.Y., Not Reported in F.Supp.3d (2014)
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As discussed above, plaintiffs allege Michael was stopped
in traffic without probable cause on five occasions, and
that the tickets issued for traffic violations during certain
of those stops were all based on false affidavits. Plaintiffs
further allege Michael was frisked without probable
cause-and thus, necessarily, without reasonable suspicionduring the winter 2011–12 stop. See United States v.
Sokolow, 490 U.S. 1, 7 (1989) (observing reasonable
suspicion “is obviously less demanding” than level of
suspicion required for probable cause).
These allegations are sufficient to state unlawful search
and seizure claims, because plaintiffs allege Michael was
stopped without cause, and all traffic violations issued in
connection with certain of those stops were based on false
affidavits, which supports a plausible inference that there
was no objective probable cause for the stops.
Plaintiffs also allege Michael's car was searched without
probable cause by Kent officers during the traffic stop
in the winter of 2011–2012. This allegation states a claim
for an unlawful search. See McCardle v. Haddad, 131
F.3d 43, 48–49 (2d Cir.1997) (“Nothing in Terry can be
understood to allow a generalized cursory search ... [and]
to validate a protective area search incident to a Terry
stop, the officer must have an articulable suspicion that
the suspect is potentially dangerous” (internal citations
and quotation marks omitted)).
Accordingly, defendants' motions to dismiss plaintiffs'
unlawful search and seizure claims are denied.

3. Excessive Force Claim Against the Putnam
Defendants
“The Fourth Amendment prohibits the use of
unreasonable and therefore excessive force by a police
officer.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d
Cir.2010) (citing Graham v. Connor, 490 U.S. 386, 395
(1989)). “The Fourth Amendment test of reasonableness
‘is one of objective reasonableness.’ “ Bryant v. City of
New York, 404 F.3d 128, 136 (2d Cir.2005) (quoting
Graham v. Connor, 490 U.S. at 399). “[T]he subjective
motivations of the individual officers ... ha[ve] no bearing
on whether a particular seizure is ‘unreasonable’ under
the Fourth Amendment.” Id. Therefore, “the inquiry is
necessarily case and fact specific and requires balancing
the nature and quality of the intrusion on the plaintiff's
Fourth Amendment interests against the countervailing

governmental interests at stake.” Tracy v. Freshwater, 623
F.3d at 96.
*8 Because police officers must often use some degree
of force when arresting or otherwise lawfully “seizing”
an individual, the Supreme Court has recognized that
“[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates
the Fourth Amendment.” Graham v. Connor, 490 U.S.
at 396 (internal citation and quotation marks omitted).
Thus, a plaintiff generally must prove he sustained
some injury to succeed on an excessive force claim.
McAllister v. N.Y.C. Police Dep't, 49 F.Supp.2d 688, 699
(S.D.N.Y.1999); see also Landy v. Irizarry, 884 F.Supp.
788, 798 n. 14 (S.D.N.Y.1995) (“An arrestee must prove
some injury, even if insignificant, to prevail in an excessive
force claim.”).
As the Putnam Defendants assert, when the injury
resulting from alleged excessive force is de minimis, the
excessive force claim is typically dismissed. See, e.g., Smith
v. City of New York, 2010 WL 3397683, at *10 (S.D.N.Y.
Aug. 27, 2010).
“On the other hand, courts have allowed plaintiffs to
recover, even though the injury caused was not permanent
or severe, where the force used was excessive.” Lemmo v.
McKoy, 2011 WL 843974, at *6 (E.D.N.Y. Mar. 8, 2011);
accord Robison v. Via, 821 F.2d 913, 924 (2d Cir.1987)
(“While [plaintiff] did not seek medical treatment for her
injuries, and this fact may ultimately weigh against her
in the minds of the jury in assessing whether the force
used was excessive, this failure is not fatal to her claim.
If the force used was unreasonable and excessive, the
plaintiff may recover even if the injuries inflicted were
not permanent or severe.”); see also Maxwell v. City of
New York, 380 F.3d 106, 108 (2d Cir.2004) (“[W]e have
permitted a plaintiff's claim to survive summary judgment
on allegations that, during the course of an arrest, a police
officer twisted her arm, ‘yanked’ her, and threw her up
against a car, causing only bruising.”).
Here, plaintiffs allege Hunsberger “slammed Michael's
face into a wall” in the course of arresting him at Home
Depot on September 15, 2011, causing visible injury later
observed by plaintiffs. (Am.Compl.¶ 83).
The Court cannot conclude the conduct alleged was not
excessive under the circumstances presented, or that the

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injuries caused by the conduct alleged were plainly de
minimis so as to bar plaintiffs' excessive force claim as a
matter of law.
Accordingly, the Putnam Defendants' motion to dismiss
plaintiffs' excessive force claim is denied.

B. Procedural Due Process
To prevail on this claim, plaintiffs must show they
possessed a protected liberty or property interest and were
deprived of that interest without due process. McMenemy
v. City of Rochester, 241 F.3d 279, 285–86 (2d Cir.2001).
Whether that interest rises to the level of a legitimate claim
of entitlement protected by the Due Process Clause is a
question of federal law. Memphis Light, Gas & Water Div.
v. Craft, 436 U.S. 1, 9 (1978).
*9 The Due Process Clause prohibits government
officers acting in an investigative capacity from
fabricating evidence when the fabrication results in
a deprivation of liberty, and the Second Circuit has
established that the harm caused by such conduct is
redressable through a Section 1983 action for damages.
See Zahrey v. Coffey, 221 F.3d 342, 348–49 (2d
Cir.2000). 4
4

Although the Supreme Court has held a similar cause
of action (involving fabrication of evidence) fell under
the Fourth Amendment, see Albright v. Oliver, 510
U.S. 266, 274–75 (1994), the Second Circuit has
characterized this right as a procedural due process
violation. As the Supreme Court noted, the Albright
plaintiff did not assert a claim for procedural due
process. Id. at 271. “Because evidence fabrication
serves to both improperly charge and/or arrest a
plaintiff as well as unfairly try him, the Coffey
violation, in its essence, involves aspects of both the
Fourth Amendment and procedural due process.”
Zahrey v. City of New York, 2009 WL 1024261, at *8
n. 14 (S.D.N.Y. Apr. 15, 2009).

Here, plaintiffs allege the initial charges filed against
Michael relating to the April 27, 2011, car accident were
based on falsified factual and expert statements from Bade
and the East Fishkill Defendants, including inconsistent
affidavits and testimony submitted by the East Fishkill
Defendants. Plaintiffs further allege Michael's liberty was
restricted when he was confined in a police vehicle at the
scene and subsequently detained and interrogated at the
police station.

Plaintiffs have also pleaded allegations of a number of
incidents during which Michael was stopped, arrested,
and/or ticketed on the basis of a false affidavit,
including one such allegation against Putnam Defendant
Hunsberger.
Accordingly, defendants' motions to dismiss plaintiffs'
procedural due process claim are denied.

C. Substantive Due Process
“[T]he substantive component of the Fourteenth
Amendment's Due Process Clause forbids the government
from burdening, in a constitutionally arbitrary way, an
individual's property [or liberty] rights.” O'Connor v.
Pierson, 426 F.3d 187, 204 (2d Cir.2005). “Substantive due
process is an outer limit on the legitimacy of governmental
action,” Natale v. Town of Ridgefield, 170 F.3d 258, 263
(2d Cir.1999), which “protects against government action
that is arbitrary, conscience-shocking, or oppressive in a
constitutional sense, but not against a government action
that is incorrect or ill-advised.” Kaluczky v. City of White
Plains, 57 F.3d 202, 211 (2d Cir.1995) (internal quotation
marks omitted).
Plaintiffs argue the conduct alleged states a substantive
due process “pattern of harassment” claim, citing Chalfy
v. Turoff, 804 F.2d 20 (2d Cir.1986), and its progeny.
In Chalfy, the Second Circuit observed “a true pattern
of harassment by government officials may make out a
section 1983 claim for violation of due process of law.” Id.
at 22.
Defendants contend the conduct alleged does not shock
the conscience.
Although the Court is inclined to find the conduct was, as
alleged, conscience-shocking, such a determination would
not alter the well-established rule that “[s]ubstantive due
process analysis is ... inappropriate ... [where a] claim is
‘covered by’ the Fourth Amendment.” Bryant v. City of
New York, 404 F.3d 128, 136 (2d Cir.2005) (quoting Cnty.
of Sacramento v. Lewis, 523 U.S. 833, 843 (1988)).
Moreover, the Chalfy line of cases relied on by plaintiffs
is distinguishable, because “[i]ntentional government
harassment with the objective of driving plaintiffs out of
business is the essence of a Chalfy claim.” Bertuglia v.
City of New York, 839 F.Supp.2d 703, 719 (S.D.N.Y.2012)

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(emphasis added) (internal quotation marks omitted). In
contrast, plaintiffs' claims are largely premised on alleged
conduct proscribed by the Fourth Amendment. The Court
concludes plaintiffs' claims are therefore substantially
“covered” by the Fourth Amendment (and by procedural
due process protections with respect to the alleged
evidence fabrication) and declines to expand the concept
of substantive due process to encompass such conduct.
See Benzman v. Whitman, 523 F.3d 119, 127 (2d Cir.2008)
(“[W]e must heed the Supreme Court's cautionary words
that ‘the Court has always been reluctant to expand the
concept of substantive due process.’ “ (quoting Collins v.
City of Harker Heights, 503 U.S. 115, 125 (1992)).
*10 Accordingly, plaintiffs' substantive due process
claim is dismissed.

59 (2d Cir.1978) (plaintiff asserting a Section 1985(2)
claim bears burden of proving classbased or other
invidiously discriminatory animus).

Here, plaintiffs allege defendants were part of a conspiracy
to intimidate and harass Michael and to suppress evidence
of Bade's intoxication following the accident, arising out
of their “collective and collaborative desire to protect”
Bade. (Am.Compl.¶ 58). Specifically, plaintiffs allege the
East Fishkill and Kent Defendants conspired to suppress
accident reports and “to remove evidence from the vehicle
owned and operated by Officer Bade” (Id. ¶ 35), and the
East Fishkill and Putnam Defendants acted in concert to
impound Michael's vehicle without probable cause on two
occasions. 6
6

D. Conspiracy
Plaintiffs assert a Section 1983 claim for conspiracy to
violate Michael's constitutional rights. 5 To survive a
motion to dismiss on a Section 1983 conspiracy claim,
plaintiffs must allege: “(1) an agreement between two or
more state actors or between a state actor and a private
entity; (2) to act in concert to inflict an unconstitutional
injury; and (3) an overt act done in furtherance of that
goal causing damages.” Pangburn v. Culbertson, 200 F.3d
65, 72 (2d Cir.1999). Although “conclusory allegations of
a § 1983 conspiracy are insufficient, ... such conspiracies
are by their very nature secretive operations, and may
have to be proven by circumstantial, rather than direct,
evidence.” Id. (internal citations and quotation marks
omitted). A plaintiff is not required to list the place
and date of defendants' meetings and the summary of
their conversations when pleading conspiracy, but the
pleadings must present facts tending to show agreement
and concerted action. See e.g., Concepcion v. City of New
York, 2008 WL 2020363, at *4 (S.D.N.Y. May 7, 2008).
5

The amended complaint also contains passing
references to 42 U.S.C. § 1985. To the extent plaintiffs
seek to assert a Section 1985 conspiracy claim,
it is dismissed for failure to allege any racial or
class-based discriminatory animus. See Gagliardi v.
Vill. of Pawling, 18 F.3d 188, 194 (2d Cir.1994)
(“To recover under section 1985(3), a plaintiff
must allege some racial, or perhaps otherwise classbased, invidiously discriminatory animus behind
the conspirators' action.” (internal quotation marks
omitted)); Herrmann v. Moore, 576 F.2d 453, 458–

Plaintiffs further assert in their opposition brief that
the East Fishkill and Putnam defendants “acted
in concert” with private actors, “the tow company
owner and auto mechanic” that had Michael's vehicle.
Because plaintiffs improperly raise this allegation for
the first time in opposition to the instant motions, the
Court declines to consider it. See, e.g., Greenidge v.
Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir.2006).

These allegations, together with allegations that officers
from all three municipalities followed and surveilled
Michael regularly over the months following the accident,
support a plausible inference of general agreement among
actors in the three municipalities to engage in harassment
and intimidation on Bade's behalf, in violation of
Michael's due process and Fourth Amendment rights, as
well as an inference of concerted action towards that end.
Therefore, defendants' motions to dismiss plaintiffs'
conspiracy claim are denied.

E. Abuse of Process
The Kent and East Fishkill Defendants move to dismiss
plaintiffs' abuse of process claim on the grounds that the
claim was not included in plaintiffs' Amended Notice of
Claim. 7
7

The Kent and East Fishkill Defendants contend
plaintiffs' failure to raise an abuse of process claim
in their Amended Notice of Claim deprives the
Court of subject matter jurisdiction. (The Putnam
Defendants instead move to dismiss pursuant to
Rule 12(b) (6), arguing plaintiffs have not pleaded
the “collateral objective” element of such a claim.)

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The Kent and East Fishkill Defendants have not
provided the Court with any authority suggesting
plaintiffs' failure to raise an abuse of process claim in
their Amended Notice has jurisdictional implications
under the circumstances presented here. Therefore,
the Court addresses defendants' motions to dismiss
this claim as motions to dismiss for failure to state a
claim. See Hardy v. N.Y.C. Health & Hosp. Corp .,
164 F.3d 789, 794 (2d Cir.1999) ( “Failure to comply
with [notice of claim] requirements ordinarily requires
a dismissal for failure to state a cause of action.”).

Plaintiffs appear to contend that their original Notice
of Claim contained a detailed account of the abuse of
process claim, the original Notice was “appended” to the
Amended Notice, and abuse of process allegations were
contained in both Notices.
In reply, the Kent and East Fishkill Defendants argue
the Amended Notice of Claim is the operative notice of
claim, and by amending their original Notice of Claim
to remove the abuse of process claim, plaintiffs expressed
their intention not to pursue it. The Kent Defendants also
correctly observe plaintiffs have not filed their original
Notice of Claim with this Court.
*11 The Court agrees. Because the Amended Notice
of Claim is the operative notice, the question is whether
plaintiffs asserted an abuse of process claim in the
Amended Notice.
“[I]n a federal court, state notice-of-claim statutes apply
to state-law claims.” Hardy v. N.Y.C. Health & Hosp.
Corp., 164 F .3d 789, 793 (2d Cir.1999). “Notice of
claim requirements are construed strictly by New York
state courts.” Id. (internal citations omitted). Under New
York law, filing a notice of claim that “states the nature
of the claim and describes the time when, the place
where, and the manner in which the claim arose, is a
condition precedent to asserting a tort claim against a
municipality .” Crew v. Town of Beekman, 105 A.D.3d 799,
800, 962 N.Y.S.2d 677, 678 (2d Dep't 2013) (citing N.Y.
Gen. Mun. Law § 50–e(1)(a)). Although “a claimant need
not state a precise cause of action in haec verba in a notice
of claim, a party may not add a new theory of liability ...
not included in the notice of claim.” Id., 105 A.D.3d at
800–01, 962 N.Y.S.2d at 678 (internal quotation marks
and citations omitted). “[U]nder New York law, if § 50–e
has not been satisfied (and the defendant has not waived
its right to a notice of claim), no damages are available.”
Hardy v. New York City Health & Hosp. Corp., 164

F.3d at 794. “Failure to comply with [notice of claim]
requirements ordinarily requires a dismissal for failure to
state a cause of action.” Id.
Having carefully reviewed plaintiffs' Amended Notice of
Claim, 8 the Court concludes plaintiffs did not satisfy the
condition precedent by stating the nature of an abuse of
process claim and describing how such a claim arose. 9
8

9

Plaintiffs' Amended Notice of Claim is incorporated
by reference in the amended complaint. See Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002).
Because the Court dismisses the abuse of process
claim on this basis, it is unnecessary to address the
Putnam Defendants' arguments regarding the lack of
a “collateral objective.”

Accordingly, plaintiffs' abuse of process claim is
dismissed.

F. Monell Claims
Defendants argue plaintiffs have failed to state Monell
claims against the three municipalities: the Town of Kent,
the Town of East Fishkill, and Putnam County. 10 See
Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). The
Court agrees.
10

In addition to the Town of Kent, the Town
of East Fishkill, and Putnam County, plaintiffs
assert their Monell claim against the Town of
Kent Police Department, the Town of East Fishkill
Police Department, and the Putnam County Sheriff's
Office. Under New York law, a municipal police
department has no separate legal identity apart from
the municipality that created it. Therefore, it cannot
be sued. See Hall v. City of White Plains, 185
F.Supp.2d 293, 303 (S.D.N.Y.2002); Baker v. Willett,
42 F.Supp.2d 192, 198 (N .D.N.Y.1999) (“A police
department cannot sue or be sued because it does not
exist separate and apart from the municipality and
does not have its own legal identity.”). Accordingly,
plaintiffs' claims against the Town of Kent Police
Department, the Town of East Fishkill Police
Department, and the Putnam County Sheriff's Office
are dismissed.

Under Monell, a municipality may be liable for
deprivation of constitutional rights “when execution of
a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly

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be said to represent official policy, inflicts the injury.” Id.
at 694. A municipality may also be liable for inadequate
training, supervision, or hiring when the failure to train,
hire, or supervise amounts to deliberate indifference to the
rights of those with whom municipal employees will come
into contact. City of Canton v. Harris, 489 U.S. 378, 388
(1989).
Plaintiffs principally argue the three municipalities
maintained a custom or practice of selectively profiling,
stopping, ticketing, and harassing teenagers in their
communities. Absent from the amended complaint,
however, are any factual allegations supporting this
conclusory assertion. In fact, the amended complaint does
not contain any allegations of misconduct directed at any
teenager other than Michael Kastle.
*12 Plaintiffs also argue there is an established policy
of asset-sharing among the municipalities, as well as a
custom or practice of transferring officers among the
neighboring jurisdictions to excuse official misconduct,
which, together, support a culture of officers “covering”
for one another. In support, plaintiffs point to allegations
that an unidentified Kent police officer was dispatched to
remove evidence from the accident scene in neighboring
East Fishkill on April 27, 2011, and the Town of Kent did
not withdraw charges against Michael arising out of the
traffic stop on July 9, 2011, even after the Town allegedly
became aware the charges were based on a false affidavit.
The Court is not persuaded these two allegations
support a plausible inference of a widespread practice
of police officers in all three municipalities covering
for one another's misconduct. Moreover, neither a
policy of asset-sharing, nor a custom or practice of
transferring officers among neighboring jurisdictions after
misconduct, is actionable by plaintiffs because there is
no affirmative causal link establishing such practices
are closely related to Michael's death, or that such
practices caused the alleged deprivations of Michael's
Fourth Amendment and due process rights. See Vippolis
v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985)
(“[T]he plaintiff must establish a casual connection-an
‘affirmative link'-between the policy and deprivation of
his constitutional rights.”); Rodriguez v. City of New
York, 649 F.Supp.2d 301, 308 (S.D.N.Y.2009) (“One of
the requirements for establishing municipal liability is
that the plaintiff establish that [t]he deficiency is closely
related to the ultimate injury, such that it actually caused

the constitutional deprivation.” (internal quotation marks
omitted)).
Furthermore, “conclusory allegations that a municipality
failed to train and supervise its employees” are insufficient
to state a Monell claim. Davis v. City of New York, 2008
WL 2511734, at *6 (S.D.N.Y. June 19, 2008). Plaintiffs'
deliberate indifference allegations are conclusory and
unsupported by any specific factual allegations.
Accordingly, plaintiffs' Monell claims against the Town of
Kent, the Town of East Fishkill, and Putnam County are
dismissed.
Plaintiffs' claims against the individual defendants in their
official capacities are dismissed for the same reasons. See
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Official—
capacity suits ... generally represent only another way of
pleading an action against an entity of which an officer is
an agent.” (internal quotation marks omitted)).

III. Personal Involvement / Supervisory Liability
The Kent Defendants argue plaintiffs have not sufficiently
alleged the personal involvement of Officers Bade
and VanderWoude, Sergeant Raneri, Police Chief
DiVernieri, and Police Chief Donald L. Smith. The
Putnam Defendants similarly argue plaintiffs' personal
involvement allegations are insufficient as to Sheriff
Donald B. Smith.
*13 “It is well settled in this Circuit that personal
involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages
under § 1983.” Colon v. Coughlin, 58 F.3d 865, 873
(2d Cir.1995) (internal quotation marks omitted). “[T]he
doctrine of respondeat superior standing alone does not
suffice to impose liability for damages under section 1983
on a defendant acting in a supervisory capacity. Evidence
of a supervisory official's ‘personal involvement’ in the
challenged conduct is required.” Hayut v. State Univ. of
N.Y., 352 F.3d 733, 753 (2d Cir.2003) (internal citation
omitted).
With respect to supervisory liability, personal involvement
need not be shown by “direct participation by the
supervisor in the challenged conduct,” but may be
demonstrated by “an official's (1) failure to take corrective
action after learning of a subordinate's unlawful conduct,
(2) creation of a policy or custom fostering the unlawful

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conduct, (3) gross negligence in supervising subordinates
who commit unlawful acts, or (4) deliberate indifference
to the rights of others by failing to act on information
regarding the unlawful conduct of subordinates.” Id.

A. Kent Defendants
Plaintiffs allege Donald L. Smith and DiVernieri were
notified Bade was driving while intoxicated on April 27,
2011, directed Bade be removed from the scene, and
directed an unidentified Kent officer to the scene to
coordinate with the East Fishkill officers investigating
the accident and remove evidence from Bade's vehicle.
Plaintiffs further allege DiVernieri was aware of the
alleged false statements made by Officer Tompkins in
connection with the traffic stop on July 9, 2011, and failed
to investigate the charges or to discipline Tompkins.
These allegations give rise to a plausible inference Donald
L. Smith and DiVernieri were deliberately indifferent to
violations of Michael's rights by failing to act on this
information.
Plaintiffs plead Raneri advised Barbara Kastle she should
stop filing FOIA requests seeking public records, allegedly
“implying Michael would continue to be harmed” if
she did not. (Am.Compl.¶ 58(j)-(l)). Thus, not only do
plaintiffs allege Raneri's direct participation in the alleged
conduct, but this allegation also supports a plausible
inference Raneri was deliberately indifferent to violations
of junior officers.
Therefore, plaintiffs have pleaded supervisory liability
claims against Donald L. Smith, DiVernieri, and Raneri.
Plaintiffs have also sufficiently pleaded the personal
involvement of defendants Bade and VanderWoude
in the alleged course of conduct. Plaintiffs plead
Bade was directly involved in the initial accident-out
of which all of the other alleged conduct arose-and
plaintiffs further allege Bade submitted false factual
statements forming the basis of the charges filed
against Michael relating to the accident, and was also
aware of the Town of East Fishkill's alleged efforts
to suppress potentially exculpatory evidence. Regarding
VanderWoude, plaintiffs allege Michael was frequently
followed to and from school by a number of Kent police
officers, including VanderWoude, in the fall of 2011.

*14 Accordingly, the Kent Defendants' motion to
dismiss for lack of personal involvement is denied.

B. Sheriff Donald B. Smith
Plaintiffs plead Putnam County Sheriff Donald B.
Smith was a former colleague of Bade, was advised by
unidentified East Fishkill actors that Bade was impaired
at the time of the accident, and took no action in response
to that information.
As the Putnam Defendants correctly observe, it is unclear
what kind of action the County Sheriff could have taken
in response to allegations of misconduct by a Town of
Kent police officer. Plaintiffs' allegations are insufficient
to plead plausibly Sheriff Smith's personal involvement in
the alleged conduct on the basis of any of the grounds set
forth above.
Therefore, plaintiffs' claims against Sheriff Donald B.
Smith are dismissed.

IV. Plaintiffs' State Law Wrongful Death Claim
“Under New York law, as a general matter, the elements
of a wrongful-death action are ‘(1) the death of a human
being born alive; (2) a wrongful act, neglect or default
of the defendant by which the decedent's death was
caused, provided the defendant would have been liable
to the deceased had death not ensued; (3) the survival of
distributees who suffered pecuniary loss by reason of the
death of decedent; and (4) the appointment of a personal
representative of the decedent.” In re September 11 Litig.,
811 F.Supp.2d 883, 886 (S.D.N.Y.2011) (quoting Chong
v. N.Y.C. Transit Auth., 83 A.D.2d 546, 441 N.Y.S.2d 24,
25–26 (2d Dep't 1981)).
Defendants argue plaintiffs' wrongful death claim should
be dismissed because Michael's death, the result of
an apparent interaction of contraindicated drugs, was
not a foreseeable consequence of defendants' alleged
interactions with Michael.
The Court disagrees.
Plaintiffs have pleaded allegations giving rise to the
inference that Michael's physical and mental well-being
were harmed by a persistent course of harassment and
intimidation by various defendants over the course of the
months preceding his death.

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Kastle v. Town of Kent, N.Y., Not Reported in F.Supp.3d (2014)
2014 WL 1508703

The Court cannot determine a decline in Michael's
mental health was not a foreseeable consequence of the
conduct alleged, or that it was not foreseeable that a
dramatic decline in a teenager's mental health could result
in physical harm or death, as a matter of law. See
Harris v. Key Bank Nat. Ass'n, 89 F.Supp.2d 408, 418
(W.D .N.Y.2000); see also Lizzio v. Cnty. of Onondaga,
170 A.D.2d 1000, 1000, 566 N.Y.S.2d 900, 900 (4th Dep't
1991) (“[P]roximate cause is almost always a triable issue
of fact.”); Rotz v. City of New York, 143 A.D.2d 301,
304, 532 N.Y.S.2d 245, 248 (1st Dep't 1988) (“Issues
of ... foreseeability and proximate cause involve the kinds
of judgmental variables which have traditionally, and
soundly, been left to the finders of fact to resolve even
where the facts are essentially undisputed.”).
Accordingly, defendants' motions to dismiss plaintiffs'
wrongful death claim are denied.

dismiss the complaint, and the Putnam Defendants'
motion to dismiss the complaint are GRANTED in part
and DENIED in part.
Plaintiffs' claims against the Town of Kent, the Town of
East Fishkill, Putnam County, and Donald B. Smith are
dismissed.
The Clerk is directed to terminate the following
defendants: the Town of Kent Police Department, the
Town of East Fishkill Police Department, the Putnam
County Sheriff's Office, the Town of Kent, the Town
of East Fishkill, Putnam County, and Putnam County
Sheriff Donald B. Smith.
The Clerk is further directed to terminate the pending
motions. (Docs. # # 22, 26, and 31).
SO ORDERED:

All Citations
CONCLUSION

Not Reported in F.Supp.3d, 2014 WL 1508703

*15 The Kent Defendants' motion to dismiss the
complaint, the East Fishkill Defendants' motion to
End of Document

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