Small v. The State of New York et al

Filing 103

DECISION AND ORDER DENYING Defendant Carl Cuer's 84 Motion for Summary Judgment; DENYING Defendants James Conway Sandra Dolce's 87 Motion for Summary Judgment as the federal claims and GRANTING it as to the state law claims. Signed by William M. Skretny, United States District Judge on 3/30/2017. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAMELA S. SMALL,
Plaintiff,
v.

DECISION AND ORDER
12-CV-1236S

THE STATE OF NEW YORK, et al.,
Defendants.

I. INTRODUCTION
Plaintiff, Pamela S. Small, brings this action against Defendants the State of New
York, the New York State Department of Corrections and Community Supervision
(“DOCCS”), Attica Correctional Facility, Corrections Officer Carl Cuer, Superintendent
James Conway, and Deputy Superintendent of Programs Sandra Dolce, asserting
claims for hostile work environment, retaliation, and sexual harassment under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C.
§ 1983, as well as supplemental state law claims under New York State Human Rights
Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. Officer Cuer, Superintendent Conway,
and Deputy Superintendent Dolce have moved for summary judgment, seeking
dismissal of Small’s claims against them under Federal Rule of Civil Procedure 56. For
the reasons discussed below, Officer Cuer’s motion is denied; Superintendent Conway
and Deputy Superintendent Dolce’s motion is granted in part and denied in part.

1

II. BACKGROUND1
Small worked as a school teacher at Attica Correctional Facility (“Attica”) from
2005 to 2012. As a teacher, she was considered a civilian employee and reported
directly to her Academic Supervisors, Acting Supervisor Russell Worthington and later
Supervisor Julie Goodrich. Worthington and Goodrich, in turn, reported to Defendant
Dolce, who was the Deputy Superintendent of Program Services and oversaw the
academic, recreational and vocational programs at Attica during the relevant period.
Deputy Superintendent Dolce reported to Defendant Conway, who was the
Superintendent of Attica and was responsible for oversight of the entire prison during
the relevant period.
Defendant Cuer is a corrections officer at Attica and has held that position since
1989.

Between 2005 and 2010, Officer Cuer and Small both worked in Attica’s

academic building, a three-story structure with two corrections officers posted on the
first floor, and one officer posted on each of the second and third floors. Officer Cuer
served as the first floor officer in the academic building, a position known as the “Hall
Captain.”

The Hall Captain is responsible for ensuring the safety of the civilian

academic employees working in the academic building.
While Officer Cuer was serving as Hall Captain, he struck up a friendship with
Small. They discussed their shared Christian faith, and Officer Cuer worked on Small’s
car and assisted her with yardwork. However, beginning in December 2009, Officer
Cuer began making alarming comments to Small. Specifically, Officer Cuer told Small
that he had been speaking with God, that God had informed him that his wife would
1

The facts are derived principally from the parties’ Local Rule 56 Statements, the parties’ declarations,
and exhibits attached thereto. Only the facts necessary to the resolution of the motions are recounted
below. The facts are undisputed unless otherwise stated.

2

soon die, and that God had chosen Small to be Officer Cuer’s new wife. Officer Cuer
began sending Small frequent emails, texts, and letters, insisting that God wanted them
to be together. Officer Cuer delivered some of these messages at work, including by
writing “I love you” on the desk calendar in Small’s classroom and leaving a note on her
desk in which he offered to apply lotion to her “hard to reach spots”, which Small took to
be a sexual advance. Officer Cuer was stationed on the first floor of the academic
building and a different corrections officer was posted to the third floor where Small’s
classroom was located. Small alleges that, although he had no job-related reason to be
there, she frequently saw Officer Cuer pacing outside her classroom and staring in her
window. She also alleges that Officer Cuer often came into the classroom while she
was teaching and attempted to discuss personal matters. Officer Cuer told a co-worker
about his plans to marry Small, as well as his belief that God would kill his wife. Other
officers also overheard Officer Cuer discussing plans to buy a gun that could be easily
concealed.

Small felt threatened and upset by Officer Cuer’s communications,

particularly because he was adamant that she was breaching her Christian faith by
refusing to be with him.
Small states that she never welcomed or reciprocated Officer Cuer’s romantic
advances. She alleges that, although she initially tried to discourage Officer Cuer while
remaining on friendly terms, Officer Cuer’s behavior became increasingly intense and
threatening. In March 2010, Small wrote Officer Cuer a letter requesting that he cease
all contact and communications with her. She verbally complained to Superintendent
Conway that Officer Cuer was harassing her and wrote a letter to Officer Cuer’s
supervisor, Sergeant Erhardt.

Small also reported the advances to her direct

3

supervisor, who reported the issue to Deputy Superintendent Dolce. Superintendent
Conway did not speak to Officer Cuer himself about Small’s allegations, but instructed
Sergeant Erhardt to direct Officer Cuer to cease non-job related contact with Small.
The contact did not stop. Instead, Officer Cuer continued to engage with Small in
ways that she found harassing and threatening. For example, in June 2010, Small
found a note on her car in the Attica parking lot that she believed had been placed there
by Officer Cuer. The note included a drawing of eyes, which Small took as a message
that Officer Cuer was watching her, as well as a drawing that meant “I love you”. In
August 2010, Small alleges that Officer Cuer sent her a number of text messages in the
early morning hours. Small believes that Officer Cuer sent the messages from outside
her house because her motion lights went on, she could hear a vehicle outside, and
because of the content of the texts.

She alleges that Officer Cuer accused her of

having a man inside her house and demanded that she come out to speak with him. In
October 2010, Small received an email from Officer Cuer, stating that God had told him
Small was pregnant and did not know who the father was, and referring to Small by the
name of a woman from the Bible who was struck down after failing to obey God. In
November 2010, Small sought and obtained an order of protection against Officer Cuer
through local law enforcement.

While the order of protection was in place, Small

alleges that Attica officials allowed Officer Cuer to come and go from the prison with no
restrictions, though Small was instructed to restrict her movement, use side doors, and
to have “supervision” when moving about the facility. Officer Cuer was later arrested for
violating the order of protection.
Throughout this period, Small and her direct supervisors made several verbal

4

reports to Superintendent Conway and Deputy Superintendent Dolce. Small alleges
that Superintendent Conway and Deputy Superintendent Dolce were first made aware
of Officer Cuer’s alarming statements in March 2010. Between March and August,
Small made further verbal complaints, but states that she was apprehensive about filing
a written complaint against Officer Cuer because she feared retaliation and needed
protection from the corrections officers while at work. Small was also aware that Officer
Cuer had a personal relationship with many Attica employees, including Superintendent
Conway. Small alleges that Superintendent Conway and Deputy Superintendent Dolce
refused to escalate her complaint or take any action until she made a complaint in
writing, which she finally did. Small alleges that Superintendent Conway and Deputy
Superintendent Dolce failed to follow DOCCS’ guidelines by refusing to escalate her
verbal complaints. Her written complaints were eventually escalated to the DOCCS’
Office of Diversity Management (“ODM”). Small never heard back from ODM regarding
the complaints. It is undisputed that Officer Cuer was not disciplined in connection with
Small’s complaints, and that he remains an employee in good standing at Attica.
Small alleges that the complaints led to several instances of retaliation. In June
2010, Small was made to move classrooms from the third floor to the second floor of the
academic building. Small alleges that the third floor was a clearly preferable location
because the third floor classrooms were off-limits to all personnel at night and on the
weekends, and that first and second floor classrooms were subject to significant
property damage.

Small alleges that the move was made in retaliation for Small’s

complaints against Officer Cuer. Officer Cuer states that, although he lobbied for the
classroom move, it was not in retaliation, but simply to keep teachers safe because the

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third floor had less supervision.

Deputy Superintendent Dolce told Small that the

classroom change was due to Deputy Superintendent Dolce’s concerns over female
teachers being on the third floor and because construction or repairs were to take place
on the third floor. It is disputed whether such construction or repairs actually took place.
Small also alleges that Officer Cuer and other corrections officers failed to provide
critical information necessary for her work by failing to put certain documents into her
staff mailbox. She contends that Officer Cuer used his position as both a corrections
officer and the Hall Captain to control information that was needed for her to
successfully and safely complete her duties. Officer Cuer also submitted a complaint
against Small, accusing her of having an inappropriate relationship with an inmate. The
DOCCS investigator who looked into the complaint found it to be without merit.
Small alleges that her health deteriorated due to Cuer’s actions and the prison’s
failure to respond.

When she ran out of sick leave, DOCCS terminated her

employment. Small alleges that she has since been diagnosed with Post Traumatic
Stress disorder. Small filed a claim of discrimination with the State Division of Human
Rights and the Equal Employment Opportunity Commission (“EEOC”) on March 11,
2011. Upon receiving a dismissal and notice of right to sue, Small brought this action.
III. LEGAL STANDARDS
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v.
Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court’s function on a summary
judgment motion “is not to resolve disputed questions of fact but only to determine

6

whether, as to any material issue, a genuine factual dispute exists.” Kaytor, 609 F.3d at
545 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986)). “A dispute regarding a material fact is genuine ‘if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.’” Weinstock
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2003) cert. denied, 540 U.S. 811, 124 S. Ct.
53, 157 L. Ed. 2d 24 (2003) (quoting Anderson, 477 U.S. at 248).
IV. DISCUSSION
In her Amended Complaint, Small claims that Officer Cuer, Superintendent
Conway, and Deputy Superintendent Dolce violated 42 U.S.C. § 1983 and NYSHRL by
unlawfully discriminating against her through the creation of a hostile work environment
and retaliation. She further claims that they aided and abetted unlawful discrimination in
violation of NYSHRL § 296(6).

Officer Cuer, Superintendent Conway, and Deputy

Superintendent Dolce move for summary judgment dismissing these claims.
A.

Section 1983 Claims
An action under § 1983 has two elements: the defendant must (1) act under

“color of state law”2 to (2) deprive the plaintiff of a statutory or constitutional right. Back
v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). Claims
of sexual harassment brought under § 1983 are analyzed under Title VII jurisprudence
and the McDonnell-Douglas burden-shifting framework. Jemmott v. Coughlin, 85 F.3d
61, 67 (2d Cir. 1996); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973). The Second Circuit describes this framework as follows:

2

Under § 1983 analysis, “state employment is generally sufficient to render the defendant a state actor.”
West v. Atkins, 487 U.S. 42, 49, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (1988); see also Patterson v.
County of Oneida, New York, 375 F.3d 206, 230 (2d Cir. 2004). None of the three defendants challenges
this element, and all were employed by the state during the relevant period.

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[T]he plaintiff bears the initial burden of establishing a prima facie case of
discrimination . . . . If the plaintiff does so, the burden shifts to the
defendant to articulate some legitimate, non-discriminatory reason for its
action. . . . If such a reason is provided, plaintiff may no longer rely on the
presumption raised by the prima facie case, but may still prevail by
showing, without the benefit of the presumption, that the employer's
determination was in fact the result of . . . discrimination.
Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008) (citations and internal
quotation marks omitted). NYSHRL discrimination claims “are [also] evaluated using
the same analytical framework used in Title VII actions.” Burniche v. General Elec.
Automation Servs., Inc., 306 F. Supp. 2d 233, 238-39 (N.D.N.Y. 2004) (quoting Farias
v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001)).
Section 1983 may be utilized “against a public official for improper sexual
conduct toward an employee that create[s] a hostile work environment.” Saulpaugh v.
Monroe Community Hosp., 4 F.3d 134, 143-44 (2d Cir. 1993), cert. denied, 510 U.S.
1164, 114 S. Ct. 1189, 127 L. Ed. 2d 539 (1994).

“To establish a hostile-work

environment claim under Section 1983, a plaintiff must demonstrate that (1) she was
intentionally harassed; (2) the harassment was based on her race or gender; (3) such
actions were taken under color of state law; and (4) the harassment was so severe as to
render the work environment hostile to her.” Rodriguez v. City of New York, 644 F.
Supp. 2d 168, 199 (E.D.N.Y. 2008). When evaluating a hostile work environment claim,
courts should consider the totality of the circumstances, such as the frequency and
severity of the conduct, whether it was physically or verbally threatening, and whether it
unreasonably interferes with the employee’s job performance.

Rivera v. Rochester

Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014). The analysis has both
“objective and subjective elements: the misconduct shown must be severe or pervasive

8

enough to create an objectively hostile or abusive work environment, and the victim
must also subjectively perceive that environment to be abusive.” Id. (internal quotation
omitted).
Both 1983 and the NYSHRL prohibit employers from retaliating against
employees who complain about sexual discrimination. To establish a prima facie case
of retaliation, a plaintiff must demonstrate that “(1) she was engaged in an activity
protected under Title VII; (2) the employer was aware of plaintiff’s participation in the
protected activity; (3) the employer took adverse action against plaintiff; and (4) a causal
connection existed between the plaintiff's protected activity and the adverse action
taken by the employer.” Gordon v. New York City Bd. of Educ., 232 F .3d 111, 116 (2d
Cir. 2000) (internal quotation omitted).

The substantive elements of a hostile work

environment claim or retaliation claim under the NYSHRL are essentially the same as
under § 1983. See Pedrosa v. City of New York, No. 13 CIV. 01890 LGS, 2014 WL
99997, at *7 (S.D.N.Y. Jan. 9, 2014); Smith v. Town of Hempstead Dep’t of Sanitation
Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451 (E.D.N.Y. 2011) (“The standard for
showing a hostile work environment under Title VII, . . . Section 1983, and the New York
State Human Rights Law is essentially the same.”); McMenemy v. City of Rochester,
241 F.3d 279, 283 n. 1 (2d Cir. 2001) (retaliation claims under the NYSHRL are treated
the same as retaliation claims under Section 1983). NYSHRL § 296(6) states that it is
unlawful discriminatory practice “for any person to aid, abet, incite, compel or coerce the
doing of any of the acts forbidden under [the NYSHRL], or attempt to do so.” N.Y. Exec.
Law § 296(6).

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1.

Officer Cuer

As an initial matter, Officer Cuer seems confused as to the claims against him.
He argues that he cannot have liability under Title VII because he is not an employer,
and that Small may only make claims for conduct that occurred within the statutory
period set by 42 U.S.C. § 2000e-5(e)(1), namely, the 300-day period prior to Small’s
filing her EEOC complaint on March 12, 2011. However, Officer Cuer is not named in
Small’s Title VII counts.3 Small names Officer Cuer only in her claims for relief under
§ 1983 and NYSHRL, which do not limit claims against co-workers and which have
three-year statutes of limitations.4 Officer Cuer’s arguments are therefore misplaced.
With respect to the federal and state claims made against him, Officer Cuer
focuses primarily on the facts rather than the law. He argues that he had no authority
over Small, and no ability to impact where her classroom was located. He also argues
that he had a rational explanation for making the complaint alleging that Small had an
inappropriate relationship with an inmate.

Finally, he argues that he had a close

friendship with Small, and that she considered him a “great guy.” These arguments as
to the material facts of the case demonstrate why sexual harassment claims are seldom
well suited for summary judgment. See Dabney v. Christmas Tree Shops, 958 F. Supp.
2d 439, 458 (S.D.N.Y. 2013), aff'd, 588 Fed. App’x 15 (2d Cir. 2014) (“[T]he Second
Circuit has cautioned [that] the existence of a hostile work environment is a mixed

3

The Amended Complaint contains two Title VII claims against the State of New York and DOCCS. The
individual defendants, including Officer Cuer, are not named in the Title VII claims.
4
This Court further notes that, even under the 300-day statute of limitations applicable to Small’s Title VII
claims, all instances of discrimination after May 15, 2010 are not time-barred. Further, that, “[u]nder the
continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge
that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all
claims of acts of discrimination under that policy will be timely even if they would be untimely standing
alone.” Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 511 U.S. 1052, 114 S.
Ct. 1612, 128 L. Ed. 2d 339 (1994).

10

question of law and fact which is especially well-suited for jury determination and
summary judgment may only be granted when reasonable minds could not differ on the
issue.” (internal quotation marks and citation omitted)).
Officer Cuer’s sole legal argument is that Small’s allegations against him do not
rise to the level of a constitutional violation. He contends that the alleged conduct did
not “transcend[ ] coarse, hostile and boorish behavior” so as to be actionable under
§ 1983. See Annis v. Cnty. of Westchester, N.Y., 36 F.3d 251, 254 (2d Cir. 1994). Antidiscrimination statutes are not a “general civility code,” see Bickerstaff v. Vassar
College, 196 F.3d 435, 452 (2d Cir. 1999), and a few isolated incidents of “boorish or
offensive use of language” are generally insufficient to establish a hostile work
environment. See Benette v. Cinemark U.S.A., Inc., 295 F. Supp. 2d 243, 251-252
(W.D.N.Y. 2003); Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 62 (2d Cir.
1992) (“incidents must be repeated and continuous; isolated acts or occasional
episodes will not merit relief”); Carrero v. New York City Hous. Auth., 890 F.2d 569, 577
(2d Cir. 1989) (“The incidents must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.”).

However, when the

incidents are extremely frequent, particularly over a short period of time, it is reasonable
to infer that work conditions were “altered for the worse.” See Fitzgerald v. Henderson,
251 F.3d 345, 358 (2d Cir. 2001) (“While a mild, isolated incident does not make a work
environment hostile, the test is whether the harassment is of such quality or quantity
that a reasonable employee would find the conditions of her employment altered for the
worse.”) (internal quotation omitted)); see also Alfano v. Costello, 294 F.3d 365, 379 (2d
Cir. 2002) (“There is no fixed number of incidents that a plaintiff must endure in order to

11

establish a hostile work environment; rather, we view the circumstances in their totality,
examining the nature, severity, and frequency of the conduct.”).
Making all inferences in Small’s favor and viewing the circumstances in their
totality, this Court finds that Small has presented sufficient evidence that Cuer’s
attentions “transcended coarse, hostile and boorish behavior,” see Annis, 36 F.3d at
254, and strayed into the realm of alarming and threatening conduct. It is not disputed
that Small notified Officer Cuer no later than March 2010 that she found his attentions
and communications annoying, but Officer Cuer continued to seek her attention through
notes, emails, and texts for several months. She alleges that Cuer came to her house
in the early morning, accused her of violating God’s plans, and left notes that he was
watching her. Small sought, and was granted, an order of protection against Officer
Cuer, which he violated resulting in his arrest. Because she was so frightened at work,
Small alleges that she fell ill. “The instances of harassment articulated by [Small] in her
[Amended Complaint] are more than single, isolated examples of verbal abuse.” See
Dunbar v. Cty. of Saratoga, 358 F. Supp. 2d 115, 124 (N.D.N.Y. 2005) (denying motion
for summary judgement where plaintiff alleged “eight specific incidents with decidedly
sexual overtones over the course of her fifteen months of active employment” and other
general allegations as to frequency).

Because Small has submitted evidence

demonstrating a series of actions and incidents sufficiently pervasive and material to
allow a reasonable jury to find that Small was subject to an objectively hostile working
environment, Officer Cuer’s motion for summary judgment as to Small’s hostile working
environment claim will be denied.
Further, a reasonable finder of fact could find that moving Small’s classroom to

12

the less-preferred second floor and the investigation of her alleged romantic relationship
with an inmate were materially adverse employment actions brought on by her
complaints against Officer Cuer, a favored employee. A plaintiff sustains an adverse
employment action if he or she endures a “materially adverse change” in the terms and
conditions of employment, that is, a change in working conditions “more disruptive than
a mere inconvenience or an alteration of job responsibilities.” Galabya v. N.Y. City Bd.
of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation omitted). Officer Cuer
contends that there were legitimate reasons for moving Small’s classroom and for
making the complaint against her. However, questions of fact remain as to whether
those reasons are pretext for discrimination. Because material questions of fact remain
as to whether Small has established a prima facie case, and whether defendants had
legitimate reasons for taking adverse employment action against her, Officer Cuer’s
motion for summary judgment as to Small’s retaliation claim will be denied.
Because the elements of Small’s claims under NYSHRL are substantially similar
to those under § 1983, the NYSHRL claims against Officer Cuer will also stand. Officer
Cuer’s motion for summary judgment is therefore denied in its entirety.
2.

Superintendent Conway and Deputy Superintendent Dolce

Small alleges that Superintendent Conway and Deputy Superintendent Dolce
violated § 1983 and NYSHRL by failing to report Small’s complaints or take any action
against Officer Cuer, and retaliated against her by moving her classroom.
Superintendent Conway and Deputy Superintendent Dolce argue that they were not
personally involved in the alleged harassment or retaliation, and therefore cannot be
liable under § 1983 or NYSHRL. They also argue that New York Corrections law bars

13

any state law discrimination claims.
a. Section 1983 and Personal Involvement
“[A] defendant in a § 1983 action may not be held liable for damages for
constitutional violations merely because he held a high position of authority.” Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).

Rather, the “personal involvement of

defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006) (internal
quotation marks omitted). Personal involvement may be demonstrated by evidence
that:
(1) the defendant participated directly in the alleged constitutional violation, (2)
the defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference . . . by failing to act on information indicating that
unconstitutional acts were occurring.
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (citing Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
In the context of sexual harassment, inaction may be actionable, and a failure to
promptly and properly respond to complaints may constitute personal involvement
under anti-discrimination laws. See Duch v. Jakubek, 588 F.3d 757, 766 (2d Cir. 2009).
Such personal involvement is generally found when the defendant had notice of the
alleged misconduct and failed to act on that knowledge. See Saxon v. Attica Med.
Dep’t, 468 F. Supp. 2d 480, 483 (W.D.N.Y. 2007) (“personal involvement can be
established upon a showing that a supervisory official became aware of a violation and
failed to remedy it”); Bass v. World Wrestling Fed’n Entm’t, Inc., 129 F. Supp. 2d 491,
14

501 (E.D.N.Y. 2001) (denying motion to dismiss Title VII claims against an employer
when harassers’ conduct was “well-known” by senior management); Wise v. N.Y. City
Police Dep't, 928 F. Supp. 355, 368-69 (S.D.N.Y. 1996) (finding that a supervisory
officer could be personally involved in an alleged deprivation of rights when the plaintiff
had proffered evidence that the officer knew of the harassment but failed to remedy it).
Here, Small has submitted evidence sufficient to allow a reasonable fact finder to
determine that Superintendent Conway and Deputy Superintendent Dolce had notice of
Officer Cuer’s actions and acted with deliberate indifference or gross negligence in
failing to remedy them. See, e.g., Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d
246, 255 (2d Cir. 2001) (holding that, where complaint alleged defendant-supervisors
were aware teacher assaulted students on four occasions prior to his assault of the
plaintiff, “a jury could find the [s]upervisors personally involved in the unconstitutional
deprivation on the basis that they were . . . grossly negligent in supervising” the
teacher). Small has also submitted evidence that Superintendent Conway and Deputy
Superintendent Dolce’s delay and failure to escalate her claims violated Attica’s internal
sexual harassment policies. Further, it is disputed whether moving Small’s classroom
was necessary for construction or done in retaliation.
Having found that material questions of fact remain as to Superintendent Conway
and Deputy Superintendent Dolce’s personal involvement in Small’s claims, their
motions for summary judgment must be denied as to the federal claims against them.
a. NYSHRL and Correction Law § 24
Superintendent Conway and Deputy Superintendent Dolce argue that the
NYSHRL claims against them must be dismissed because they are barred from

15

consideration by N.Y. Correction Law § 24(1). Correction Law § 24 “shields employees
of a state correctional facility from being called upon to personally answer a state law
claim for damages based on activities that fall within the scope of the statute.” Ierardi v.
Sisco, 119 F.3d 183, 187 (2d Cir. 1997). Instead, any claim for damages due to a state
correctional facility employee’s action or inaction must be brought in New York’s Court
of Claims as a claim against the state. Id.5
The jurisdictional limitation of § 24 is broad, and “immunity is not necessarily
unavailable simply because the challenged conduct is violative of regulations of the
Department of Correctional Services, or otherwise beyond an officer’s authority.”
Ierardi, 119 F.3d at 187. However, its application is limited to conduct occurring “within
the scope of the employment and in the discharge of the [employee’s] duties.” N.Y.
Correction Law § 24(1); Ierardi, 119 F.3d at 187. “[A]n employee will be considered
within the scope of his employment so long as he is discharging his duties, ‘no matter
how irregularly, or with what disregard of instructions.’”

Cepeda v. Coughlin, 128

A.D.2d 995, 996, 513 N.Y.S.2d 528, 530 (3d Dep’t 1987) (quoting Riviello v. Waldron,
47 N.Y.2d 297, 302, 391 N.E.2d 1278 (N.Y. 1979) (internal quotation marks omitted)).
On-the-job conduct of DOCCS employees has sometimes been found to be outside the
scope of employment, but “such holdings generally have been limited to cases in which
the conduct was prompted purely by personal reasons unrelated to the employer’s
interest, or indicated an intentional course of conduct contrary to institutional rules,
training and common sense.”

Degrafinreid v. Ricks, 452 F. Supp. 2d 328, 334

(S.D.N.Y. 2006) (internal citations and punctuation omitted); see Ierardi, 119 F.3d at
5

This Court notes that N.Y. Correction Law § 24 bars only those claims brought under state law, not
federal claims brought under § 1983. Haywood v. Drown, 556 U.S. 729, 740, 129 S. Ct. 2108, 2117, 173
L. Ed. 2d 920 (2009).

16

188 (correction officer’s alleged sexual harassment of co-worker while on duty was
beyond scope of employment); Livingston v. Griffin, No. 9:04-CV-0607, 2007 WL
2437433, *2 (N.D.N.Y. Aug. 22, 2007) (defendants not immune from allegation that they
committed a civil battery by intentionally and deliberately feeding plaintiff foods mixed
with unknown drugs).
Small alleges that Superintendent Conway and Deputy Superintendent Dolce
failed to respond to complaints and failed to take appropriate remedial action with
respect to harassment by Officer Cuer, and retaliated against her by moving her
classroom.

As alleged, these incidents “occurred during the course of the parties’

employment and arose out of defendants’ relationship as plaintiff’s supervisors.” Gore
v. Kuhlman, 217 A.D.2d 890, 630 N.Y.S.2d 141 (3d Dep’t 1995) see Reynolds v.
Barrett, 685 F.3d 193, 201 n. 5 (2d Cir. 2012) (affirming dismissal of state law
discrimination claims as barred by Corrections Law § 24). A supervisor’s failure to
follow a sexual harassment policy “constitutes no more of a departure from the normal
methods of performing the duties of employment than a correction officer’s use of
excessive force to quell an inmate disturbance, resulting in an assault.”

Gore, 217

A.D.2d at 891 (citing Cepeda, 128 A.D.2d at 997 (section 24 applied to alleged assault
of inmates by correction officers because custody and control of inmates are part of the
officers’ duty)).
Because Small’s allegations made in support of her NYSHRL claims describe
Superintendent Conway and Deputy Superintendent Dolce’s abuse or dereliction of
their supervisory positions, her claims against them are barred from consideration in this
Court by Corrections Law § 24. See Gore, 217 A.D.2d at 891 (disciplinary actions and

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similar matters fell within the defendants’ authority as plaintiff’s supervisors).
Accordingly, Superintendent Conway and Deputy Superintendent Dolce’s motion for
summary judgment is granted as to the state law claims.
IV. CONCLUSION
Defendants have failed to establish that there are no material facts in dispute
such that the claims against them should be dismissed. However, this Court finds that it
does not have jurisdiction over Small’s state law claims against Superintendent Conway
and Deputy Superintendent Dolce.

Therefore the state law claims against

Superintendent Conway and Deputy Superintendent Dolce’s are dismissed. Otherwise
the motions for summary judgment are denied.
V. ORDERS
IT HEREBY IS ORDERED that Defendant Carl Cuer’s motion for summary
judgment (Docket No. 84) is DENIED;
FURTHER, that Defendants James Conway Sandra Dolce’s motion for summary
judgment (Docket No. 87) is DENIED as the federal claims and GRANTED as to the
state law claims.
SO ORDERED.
Dated: March 30, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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