Abbott v. Wyoming County Sheriff's Office

Filing 65

DECISION AND ORDER granting Plaintiff's request to voluntarily dismiss her hostile work environment claims and denying as moot 62 Motion for Summary Judgment. Signed by Hon. Elizabeth A. Wolford on 05/13/2020. (CDH)

Case 1:15-cv-00531-EAW-HBS Document 65 Filed 05/13/20 Page 1 of 4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
CYNTHIA ABBOTT,
Plaintiff,

DECISION AND ORDER

v.

1:15-CV-00531 EAW

WYOMING COUNTY SHERIFF’S
OFFICE,
Defendant.
____________________________________

Plaintiff Cynthia Abbott (“Plaintiff”) brings this action against defendant Wyoming
County Sheriff’s Office (“Defendant”), alleging that she was discriminated against in her
employment due to disability and retaliated against when she complained of the
discrimination. (Dkt. 1).
Defendant has filed a renewed motion for summary judgment as to Plaintiff’s claims
of a hostile work environment under the Americans with Disabilities Act of 1990, as
amended, 42 U.S.C. §§ 12101 et seq. (the “ADA”) and the New York Human Rights Law,
New York Executive Law §§ 290 et seq. (the “NYHRL”). (Dkt. 62). Defendant filed a
prior motion for summary judgment (Dkt. 39), which the Court granted in part and denied
in part on September 26, 2019 (Dkt. 61). In particular, the Court granted Defendant’s
motion as to any claim by Plaintiff for punitive damages and denied Defendant’s motion
as to Plaintiff’s claims for discrimination and retaliation under the ADA and the NYHRL.
(Id. at 29-30). The Court further denied Defendant’s motion with respect to Plaintiff’s
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Case 1:15-cv-00531-EAW-HBS Document 65 Filed 05/13/20 Page 2 of 4

hostile work environment claims, “but without prejudice to the filing of a renewed motion
for summary judgment addressing solely these claims. . . .” (Id.).
Defendant filed its renewed motion for summary judgment as to Plaintiff’s hostile
work environment claims on October 24, 2019. (Dkt. 62). Plaintiff filed her responsive
papers on November 22, 2019. (Dkt. 64). In her response, Plaintiff states that she
“respectfully withdraws only the hostile work environment cause of action in violation of
the ADA and hostile work environment cause of action in violation of the NYHRL[.]” (Id.
at 4). However, Plaintiff takes issue with the Defendant’s arguments in support of its
motion for summary judgment, and states that she “opposes any consideration of the
rationale . . . set forth by Defendant.” (Id.). Defendant did not file any reply papers, despite
having been given the opportunity to do so. (See Dkt. 63 (ordering Defendant to file reply
papers by December 6, 2019)).
The Court construes Plaintiff’s filing as a request to voluntarily dismiss her hostile
work environment claims. Pursuant to Federal Rule of Procedure 41(a)(2), “an action may
be dismissed at the plaintiff’s request . . ., on terms that the court considers proper.”
Although Rule 41(a)(2) refers to dismissal of an “action,” it may be used to dismiss less
than the entire case. See Guigliano v. Danbury Hosp., 396 F. Supp. 2d 220, 224 (D. Conn.
2005). “The decision whether to grant a Rule 41(a) motion for voluntary dismissal lies
within the sound discretion of the court.” Resto-Otero v. Mohammad, No. 9:17-CV-1115
GLS ML, 2019 WL 4544540, at *1 (N.D.N.Y. Sept. 19, 2019).
Here, the Court sees no reason to deny Plaintiff’s request for voluntary dismissal,
inasmuch as all parties agree that Plaintiff’s hostile work environment claims should no
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longer be a part of this action, and Defendant will not be prejudiced by the dismissal. See
Gap, Inc. v. Stone Int’l Trading, Inc., 169 F.R.D. 584, 588 (S.D.N.Y. 1997) (“[T]he
presumption in this circuit is that a court should grant dismissal pursuant to Rule 41(a)(2)
absent a showing that defendants will suffer substantial prejudice as a result.”), aff’d, 125
F.3d 845 (2d Cir. 1997).
The presumption is that voluntary dismissal under Rule 41(a)(2) is without
prejudice. See Fed. R. Civ. P. 41(a)(2) (“Unless the order states otherwise, a dismissal
under this paragraph (2) is without prejudice.”). The Court sees no reason to depart from
the usual rule here.1 See Payer ex rel. Transition Metals Tech., Inc. v. The SGL Carbon,
LLC, No. 05-CV-0226E(F), 2006 WL 2714190, at *10 (W.D.N.Y. Sept. 22, 2006)
(granting voluntary dismissal without prejudice after motion for summary judgment was
filed where it was “clear to the Court that neither party wishes that the claims proceed at
this time”).2
For these reasons, the Court grants Plaintiff’s request and dismisses Plaintiff’s
hostile work environment claims without prejudice pursuant to Rule 41(a)(2). The Court
accordingly denies Defendant’s renewed motion for summary judgment (Dkt. 62) as moot.

1

The Court notes that Defendant had the opportunity to oppose Plaintiff’s request to
withdraw her hostile work environment claims or to argue that any dismissal should be
with prejudice and did not do so.

2

The distinction between a dismissal with or without prejudice is largely academic,
inasmuch as the statute of limitations for any hostile work environment claim based on the
events at issue here has long since run. See In re IndyMac Mortg.-Backed Sec. Litig., 718
F. Supp. 2d 495, 504 (S.D.N.Y. 2010) (“The general rule . . . is that a voluntarily dismissed
complaint does not toll the statute of limitations.” (footnotes omitted)).
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SO ORDERED.

_________________________________
ELIZABETH A. WOLFORD
United States District Judge
Dated: May 13, 2020
Rochester, New York

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