Kasperek v. New York State, Department of Corrections and Community Supervision
Filing
37
DECISION AND ORDER denying 10 Motion to Dismiss for Failure to State a Claim; denying 16 Motion to Dismiss for Failure to State a Claim; adopting in part Report and Recommendations re 19 Report and Recommendations. (Clerk to reassign this case to the Honorable Lawrence J. Vilardo for all further proceedings.) Signed by Hon. Michael A. Telesca on 5/24/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________
MICHELE L. KASPEREK,
DECISION AND ORDER
No. 1:16-cv-00671
Plaintiff,
-vs-
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
Defendant.
________________________________
I.
Introduction
This matter comes before the Court following United States
Magistrate
Judge
Hugh
B.
Scott’s
filing
of
a
Recommendation (Docket No. 19) on January 10, 2017.
Report
and
See 28 U.S.C.
§ 636(b)(1)(B); Western District of New York Local Rule 72(b), (c).
In his Report and Recommendation (“R&R”), Judge Scott recommended
that
Defendant’s
motion
to
dismiss
(Docket
Nos.
10,
16)1
Plaintiff’s claims for employment discrimination, should be granted
in
part,
and
denied
in
part.
Judge
Scott
recommended
that
Plaintiff’s sex discrimination claim, filed pursuant to Title VII,
be dismissed, but that Plaintiff’s hostile work environment claim,
in
violation
of
Title
VII,
and
her
retaliation
claim,
pursuant to Title VII, be permitted to proceed to discovery.
filed
See
Docket No. 19.
1
Defendants filed a motion to dismiss the complaint on October 14, 2016. Docket
No. 10. Thereafter, on November 3, 2016, Plaintiff filed an amended complaint.
Docket No. 14. Defendant subsequently filed a motion to dismiss the amended
complaint on November 21, 2016. Docket No. 16. Judge Scott’s R&R addresses both
motions to dismiss. Docket No. 19.
Both parties filed objections to the R&R (Docket Nos. 22, 23)
and responses (Docket Nos. 25, 26, 28, 29).
Plaintiff objected to
the R&R to the extent it dismissed Plaintiff’s sex discrimination
claim (Docket No. 22 at 1), and Defendant objected to the portion
of the R&R finding that Plaintiff’s retaliation claim was timely
filed (Docket No. 23 at 3).
Defendant does not object to the
portion of the R&R denying its motion to dismiss Plaintiff’s
hostile work environment claim.
On
May
undersigned.
Court adopts
20,
2019,
the
Docket No. 36.
the
See , e.g., Docket No. 23 at 2-3.
matter
was
transferred
to
the
For the reasons discussed below, the
portions of
the
R&R
recommending
denial
of
Defendant’s motion to dismiss Plaintiff’s hostile work environment
and retaliation claims.
However, the Court reverses the R&R
finding which grants Defendant’s motion to dismiss Plaintiff’s sex
discrimination claim. Accordingly, Plaintiff’s claim alleging sex
discrimination is permitted to go forward for the reasons stated
herein.
II.
Discussion
A.
Standard
When reviewing a magistrate judge’s report and recommendation,
a district court is required to “make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
and “may accept, reject, or modify, in whole or in part, the
-2-
findings or recommendations made by the magistrate judge[,]” id.
Where no “specific written objection” is made to portions of the
magistrate judge’s report, the district court may adopt those
portions, “as long as the factual and legal bases supporting the
findings and conclusions set forth in those sections are not
clearly erroneous or contrary to law.”
Eisenberg v. New England
Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008)
(citing FED. R. CIV. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149
(1985); other
citation
omitted).
The
district
court
is
not
required to review any portion of a magistrate judge’s report that
is not the subject of an objection.
Eisenberg, 564 F. Supp. 2d at
227 (citing Thomas, 474 U.S. at 149).
B.
Plaintiff’s Hostile Work Environment Claim
As noted above, the parties did not object to the portion of
the R&R denying Defendant’s motion to dismiss Plaintiff’s hostile
work environment claim.
The Court has reviewed Judge Scott’s
thorough and well-reasoned R&R as it pertains to Plaintiff’s
hostile work environment claim, and accepts his recommendation that
the Court deny Defendant’s motion in this respect.
C.
Plaintiff’s Retaliation Claim
Judge Scott found that Plaintiff’s retaliation claim was
timely filed, based on a decision issued by the First Circuit Court
of Appeals, Franceschi v. United States VA, 514 F.3d 81 (1st Cir.
2008).
Docket No. 19 at 16-21.
-3-
In Franceschi, the plaintiff’s
charge contained claims for harassment and discrimination.
85-86.
had
Id. at
The EEOC sent the plaintiff a letter, explaining that it
dismissed
the
harassment
charge,
but
accepted
and
was
continuing investigation of the discrimination charge.
Id.
The
letter also informed the plaintiff that due to the continuing
investigation, he could not “avail himself of the agency’s appeal
procedures
until
final
action
had
been
taken.”
Id.
at
86.
Plaintiff nonetheless filed his case in federal court, and the
district court granted summary judgment in favor of the defendants,
due
in
part
to
the
plaintiff’s
administrative remedies.
failure
to
exhaust
his
Id. at 84.
The First Circuit affirmed the judgment of the district court,
explaining, “[t]he EEOC was not given the opportunity to take final
action on the administrative charge.
It had only just started to
investigate [the discrimination claim] when [the plaintiff] jumped
the gun by filing suit.
Administrative remedies were accordingly
not exhausted with respect to either claim - that alleging a
hostile
work
environment,
discrimination. . . .”
Scott
in
his
R&R,
Id.
“the
or
that
alleging
gender-based
In other words, as explained by Judge
EEOC
split
the
allegations
in
the
complainant’s charge, and the dismissal of some allegations did not
require further action by the complainant until the entire charge
ran its course.”
See Docket No. 19 at 20.
-4-
Defendant, in its objections, contends that the Fifth Circuit
case, Stokes v. Dolgencorp, 367 F. App’x 545 (5th Cir. 2010), is
more persuasive than Franceschi, as it concerns the same regulatory
scheme at issue in this case.
Docket No. 23 at 7.
In Stokes, the
plaintiff received two right to sue letters, including one for her
sex discrimination claim, on or about February 27, 2008, and
another for her unequal pay claim, on or about April 7, 2008.
Stokes, 367 F. App’x at 546-47.
Plaintiff filed her suit in
federal court on June 24, 2008, alleging Title VII disparate
treatment, and the defendant moved to dismiss the plaintiff’s claim
as
untimely.
Id.
at
547.
defendant’s motion to dismiss.
The
Id.
district
court
granted
the
On appeal, Plaintiff argued
that the time for filing her complaint in federal court should run
from April 7, 2008, when she received notice regarding her unequal
pay claim, because “she was led to believe that the EEOC was in the
process of determining whether to file a lawsuit on her behalf
regarding her termination and pay discrimination claims,” and “she
did not need to act to file either of her claims until she received
notice from the EEOC regarding whether it would file an action.”
Id. at 548-49.
The Fifth Circuit rejected this argument.
Id. at
549.
The Stokes decision was not decided by the Second Circuit
Court of Appeals, and it is not controlling in this instance.
There is an absence of controlling authority within the Second
-5-
Circuit on this issue, and the Court finds the reasoning contained
in Judge Scott’s R&R and Franceschi to be persuasive in this case.
The
Court
therefore
adopts
Judge
Scott’s
conclusion
that
“[a]pplying one clock to a single charge or EEOC file . . . has
practical advantages.”
See Docket No. 19 at 20.
Accordingly, the
Court overrules Defendant’s objection regarding the timeliness of
Plaintiff’s retaliation claim (Docket No. 23), and adopts the R&R
(Docket No. 19), insofar as it recommends denial of Defendant’s
motion to dismiss Plaintiff’s retaliation claim as untimely.
D.
Plaintiff’s Sex Discrimination Claim
Judge Scott recommended that the Court grant Defendant’s
motion
to
dismiss
Plaintiff’s
sex
discrimination
claim,
as
Plaintiff failed to plead information rising to the level of a
materially adverse change in employment.
Specifically,
Judge
Scott
concluded
Docket No. 19 at 15.
that
“[t]he
graffiti,
threatening telephone calls, sexual slurs, and other events are
cognizable
under
the
first
and
third
claims
of
the
amended
complaint for reasons explained elsewhere in this Report and
Recommendation.
These events, however, do not appear to have led
to any diminution in Kasperek’s wages, benefits, hours, major
responsibilities, or other material aspects of her job.”
Plaintiff
contends
that
the
amended
complaint
Id.
contains
numerous allegations supporting a materially adverse employment
action, including that she is no longer being asked to serve as an
-6-
Acting Supervisor, was subject to humiliating and embarrassing
events, had her authority and respect undermined, and was placed at
risk in the workplace.
See Docket Nos. 22 at 2, 29 at 4; see also
Docket No. 14 at ¶¶ 18-20, 32-33, 38, 43, 46, 54-61, 65, 67, 72-73,
80, 88, 90-91, 96-97, 108.
“To make out a prima facie case of discrimination under Title
VII, an employee must demonstrate that: ‘(1) [he or she] is a
member of a protected class; (2) [he or she] was qualified for her
position and satisfactorily performed [his or her] duties; (3) [he
or
she]
suffered
an
adverse
employment
action;
and
(4)
the
circumstances surrounding that action giv[e] rise to an inference
of discrimination.’”
Lewis v. Turning Point Brooklyn, Inc., No.
1:17-cv-7560 (FB)(RLM), 2019 WL 1433068, at *5 (E.D.N.Y. Mar. 29,
2019) (quoting Buckley v. New York, 959 F. Supp. 2d 282, 296
(E.D.N.Y. 2013)) (alterations in original). “An adverse employment
action must be more disruptive than a mere inconvenience or an
alteration of job responsibilities.” Zucco v. Auto Zone, Inc., 800
F. Supp. 2d 473, 477 (W.D.N.Y. 2011).
“The Second Circuit has
defined this requirement broadly, to include refusal to hire,
refusal to promote, demotion, reduction in pay, and reprimand, as
well as lesser actions that may meet the adversity threshold based
on the factual circumstances and context of the action.”
Edwards
v. Metro-North Commuter R.R. Co., No. 3:04cv1430 (JBA), 2006 WL
-7-
2790402, at *5 (D. Conn. Sept. 27, 2006) (internal quotations and
citations omitted).
Under Rule 12(b)(6), while a complaint need not include
detailed factual allegations, a claim must be plausible on its
face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).
It
must describe the claim in sufficient detail to give each defendant
notice of what the claim is and the grounds upon which it rests.
Id. at 555.
A claim has “facial plausibility 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. 662, 678 (2009).
must
accept
as
true
all
of
the
“[A]lthough a court
allegations
contained
in
a
complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”
Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009).
Plaintiff
has
adequately
alleged
a
claim
for
sex
discrimination. The amended complaint contains several allegations
relevant to an adverse employment action.
For example, Plaintiff
alleges that she was no longer asked to serve as an Acting
Supervisor for her department.
Docket No. 14 at ¶ 38.
Plaintiff
also alleges that she felt unsafe at work, due to Defendant’s
direction that male inmates clean up the graffiti on her door, her
receipt of harassing and threatening phone calls, and Defendant’s
-8-
refusal to take steps to remedy Plaintiff’s safety concerns.
at ¶¶ 18-20, 33, 42, 54-67, 72-73, 90-91, 97.
Id.
Finally, as a result
of this conduct, Plaintiff alleges that she felt embarrassed and
humiliated, experienced anxiety, missed work, and lost income. Id.
at ¶¶ 99-112.
These allegations - particularly those involving Defendant’s
denial of leadership opportunities to Plaintiff, and Defendant’s
failure to provide Plaintiff with a
safe working environment -
plainly constitute disruptions amounting to more than a mere
inconvenience or an alteration in job responsibilities.
Edwards,
2006
WL
2790402,
at
*5
(“the
refusal
to
See
requalify
plaintiff as a Class A lineman, to the extent that such failure
limited plaintiff’s opportunity to receive overtime assignments,
can
constitute
an
adverse
employment
action
if
it
adversely
impacted his ability to make additional money. Further, failure to
provide plaintiff with protective equipment which every other
worker on plaintiff’s gang had, and which it was company policy to
provide, also could constitute an adverse employment action because
it exposed plaintiff to potentially unreasonably dangerous working
conditions.”).
Further,
when
considering Plaintiff’s
allegations concerning an adverse employment action collectively,
and in conjunction with the allegations substantiating Plaintiff’s
hostile work environment claim, Plaintiff has plausibly alleged an
adverse employment action.
See Ruiz v. City of N.Y., No. 14-CV-
-9-
5231 (VEC), 2015 WL 5146629, at *4 (S.D.N.Y. Sept. 2, 2015) (while
some of the plaintiff’s allegations of adverse actions, standing
alone, did not amount to an adverse employment action, “others
plausibly state a claim, and as a group they collectively state a
claim.”).
Whether
discovery
will
substantiate
Plaintiff’s
allegations of an adverse employment action remains to be seen, but
Plaintiff has pled a plausible claim at the pleading stage of this
action.
III. Conclusion
For the foregoing reasons, the Court adopts in part, and
reverses in part, Judge Scott’s R&R (Docket No. 19). The Court
adopts the R&R to the extent it recommends denying Defendant’s
motion to dismiss Plaintiff’s hostile work environment claim and
Plaintiff’s retaliation claim.
The Court reverses the R&R to the extent it recommends dismissal of
Plaintiff’s sex discrimination claim.
Accordingly, Defendant’s motions to dismiss (Docket Nos. 10,
16) are denied, and Plaintiff’s claims based on hostile work
environment, retaliation, and sex discrimination shall all go
forward.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
May 24, 2019
Rochester, New York
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