JUDITH C. McCARTHY, Magistrate Judge.
Plaintiff Robert L. Dunn, Sr., proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against Defendant Blake Starner. Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket No. 54). Plaintiff has opposed Defendant's motion, (Docket No. 66), and filed his own motion requesting "compensation" and a "stay away order," (Docket No. 62). For the reasons set forth below, the Court grants Defendant's motion and denies Plaintiff's motion.
Plaintiff filed the complaint in this action on August 12, 2015. (Docket No. 2). His complaint, read generously, seeks monetary damages pursuant to Section 1983 based on an alleged pattern of harassment by Defendant in violation of Plaintiff's constitutional right to substantive due process. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) ("[W]e read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994))). In his complaint, Plaintiff alleges that Defendant "showed up at [Plaintiff's] home off duty harassing [Plaintiff] & making numerous threats, as well as making bias remarks about [Plaintiff's] sexuality, following [Plaintiff] around using his authority to intimidate [Plaintiff]." (Docket No. 2 at § III.C).
On April 7, 2017, after completing discovery, Defendant filed a motion for summary judgment, (Docket No. 54), accompanied by a memorandum of law, (Docket No. 56); a statement of facts pursuant to Local Civil Rule 56.1, (Docket No. 60); an affidavit signed by Defendant ("Starner Aff."), (Docket No. 57), attaching five exhibits labeled "A" through "E," (Docket Nos. 57-1 through 57-5); an affidavit signed by James Ginty ("Ginty Aff."), (Docket No. 55); and an affidavit signed by Michael Davidoff, (Docket No. 58), attaching three exhibits labeled "A" through "C," (Docket Nos. 58-1 through 58-3), including a copy of the transcript from the deposition of Plaintiff conducted on January 27, 2017 ("Dunn Dep. Tr."), (Docket No. 58-3).
On April 12, 2017, Plaintiff filed a notice of motion requesting that the Court "have Defendant compensate [Plaintiff] due to the substantial amount of stress, trauma related issues, [and] anxiety issues stemming from [Defendant's] misconduct. . . ." (Docket No. 62 at 1). Plaintiff also requested "a stay away order against Defendant." (Id.). With his notice of motion, Plaintiff submitted a declaration signed by him and dated March 30, 2017 ("Dunn Declaration"). (Docket No. 62 at 2-4). In addition, on April 25, 2017, Plaintiff submitted a letter opposing Defendant's motion for summary judgment. (Docket No. 66). Plaintiff did not submit a Rule 56.1 statement in opposition to Defendant's summary judgment motion. On April 27, 2017, Defendant filed a memorandum of law, (Docket No. 68), and an additional affidavit signed by Defendant, (Docket No. 67), in opposition to Plaintiff's motion.
The Court has considered Defendant's motion for summary judgment concurrently with Plaintiff's motion for compensation because the two motions concern the same issues.
The following facts—which are based on the evidence submitted in support of Defendant's motion for summary judgment, as well as the Dunn Declaration submitted by Plaintiff—are undisputed unless otherwise indicated.
Defendant is a Sergeant in the Sullivan County Sheriff's Patrol Office. (Starner Aff. ¶ 1). His duties include investigating crimes and road patrol. (Id.). In May 2014, he commenced a rape investigation that brought him into contact with Plaintiff, who was a suspect. (Id. ¶ 2). As a result of Defendant's investigation, Plaintiff was arrested for sexual relations with an underage person. (Id. ¶¶ 7-8). In January 2015, Plaintiff was convicted upon a plea of guilty of Violation of Penal Law 130.20, Class A Misdemeanor, Sexual Misconduct. (Id. ¶ 8). Plaintiff was sentenced to a term of one year in the Sullivan County Jail. (Id. ¶ 9).
In April 2015, following Plaintiff's release from incarceration, Defendant assisted Plaintiff with Plaintiff's registration as a sex offender at the Sullivan County Sheriff's Office. (Id. ¶¶ 10-11). After the registration, Plaintiff requested return of his personal property that had been taken from him when he was arrested in May 2014. (Id. ¶ 14). Upon returning Plaintiff's personal property, which included a cell phone, Defendant became aware that Plaintiff had given untruthful responses when completing his sex offender registration, and Defendant commenced a criminal investigation. (Id. ¶¶ 16-17). As a result of this investigation, Plaintiff was ultimately arrested and charged with (1) Violation of Penal Law 105.05, Conspiracy in the Fifth Degree; and (2) Violation of Penal Law 235.22, Indecent Material to Minors in Violation of Correction Law 0168-F, Sex Offender Failed to Report Change. (Id. ¶¶ 22, 24).
Defendant commenced another unrelated investigation of Plaintiff as a result of a call to the Sullivan County Sheriff's Department of a possible sexual encounter between Plaintiff and another person who may have been underage. (Id. ¶ 23). This investigation resulted in no charges against Plaintiff, as it was discovered that the person who had been with Plaintiff was an adult. (Id.). Defendant admits that he went to Plaintiff's house on two occasions while conducting this unrelated investigation, but Plaintiff was not there. (Id. at ¶¶ 23, 37). Plaintiff testified that he had contact with Defendant at his house on one of these occasions, during which Defendant threatened: "I am going to see to it that you get put away for a very long time." (Dunn Dep. Tr. at 38:13-39:21). Defendant denies that this encounter ever occurred. (Starner Aff. ¶¶ 23, 37).
At his deposition, Plaintiff also testified to a separate alleged encounter in which Defendant followed Plaintiff on Plaintiff's street while driving an unmarked vehicle and made a remark to Plaintiff about Plaintiff's sexuality. (Dunn Dep. Tr. at 25:5-26:17). Defendant also denies that this encounter ever occurred. (Starner Aff. ¶¶ 31-32).
On June 16, 2015, while Plaintiff was incarcerated at the Sullivan County Jail, Defendant obtained a search warrant for information from Plaintiff's cell phone. (Starner Aff. ¶ 25; see also Docket No. 57-3 at 7). Shortly thereafter, Defendant interviewed Plaintiff in the presence of Sullivan County Sheriff's Office Captain James Ginty and requested that Plaintiff provide information in order to unlock Plaintiff's cell phone. (Id.; see also Ginty Aff. ¶¶ 3-10; Dunn Dep. Tr. at 35:9-38:6). Plaintiff unlocked the phone. (Starner Aff. ¶ 25; Ginty Aff. ¶ 11; Dunn Dep. Tr. at 36:17-22). In April 2016, Plaintiff pled guilty to Violation of Correction Law 0168-F(4), Class E Felony, Sex Offender Failed to Report Change of Address/Status in 10 days, and was sentenced to a term of sixteen months to four years. (Starner Aff. ¶ 27).
On each occasion that Defendant had direct contact with Plaintiff during the relevant period—other than the two encounters Plaintiff claims occurred, but which Defendant denies—the encounter was related to a criminal investigation conducted by Defendant. (Starner Aff. ¶ 38).
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party bears the burden of demonstrating that it is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The Court must grant summary judgment "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." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute as to a material fact "exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986). A fact is material if it might affect the outcome of the suit under the governing law. Casalino v. N.Y. State Catholic Health Plan, Inc., No. 09 Civ. 2583(LAP), 2012 WL 1079943, at *6 (S.D.N.Y. Mar. 30, 2012).
In reviewing a motion for summary judgment, the Court "must draw all reasonable inferences in favor of the [non-moving] party" and "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000). That said, the Court may not weigh the evidence or determine the truth of the matter, but rather conducts "the threshold inquiry of determining whether there is the need for a trial." Anderson, 477 U.S. at 250.
The moving party bears the initial burden of "demonstrating the absence of a genuine issue of material fact." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex, 477 U.S. at 323). If the moving party meets this initial burden, the burden then shifts to the nonmoving party to "present evidence sufficient to satisfy every element of the claim." Id. "The non-moving party `is required to go beyond the pleadings' and `designate specific facts showing that there is a genuine issue for trial,'" id. (citing Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 249-50), and "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-moving party fails to establish the existence of an essential element of the case on which it bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. Because Plaintiff is proceeding pro se, the Court must construe his papers liberally and interpret them to raise the strongest arguments that they suggest. McPherson, 174 F.3d at 280. Nonetheless, "application of this different standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003).
In the Southern District of New York, parties moving for and opposing summary judgment must also submit short and concise statements of facts, supported by evidence that would be admissible at trial. Local Civ. R. 56.1. The opposing party must specifically controvert the moving party's statement of material facts, or the moving party's facts will be deemed admitted for purposes of the motion. Local Civ. R. 56.1(c); T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) ("A nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible."). However, uncontested facts cannot be deemed true simply by virtue of their assertion in a Local Rule 56.1 statement; the Court is free to disregard the assertion in the absence of citations or where the cited materials do not support the factual assertions in the statements. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). The Court therefore has discretion "to conduct an assiduous review of the record" even where one of the parties has failed to file such a statement. Id.; see also Fed. R. Civ. P. 56(c)(3). Nevertheless, the Court is "not required to consider what the parties fail to point out." Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000).
Plaintiff alleges in his complaint that the basis for the Court's jurisdiction is federal question jurisdiction arising out of Plaintiff's "constitutional rights being violated." (Docket No.
2 at § II.B). Accordingly, the Court construes Plaintiff's complaint as asserting claims pursuant to 42 U.S.C. § 1983. "The first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right `secured by the Constitution and laws.'" Baker v. McCollan, 443 U.S. 137, 140 (1979) (quoting 42 U.S.C. § 1983). It is not clear what specific constitutional right Plaintiff believes to be at stake. (See Dunn Dep. Tr. at 51:10-54:23). Read generously, Plaintiff's complaint appears to assert a claim that Defendant's conduct violated Plaintiff's right to 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." Kastle v. Town of Kent, N.Y., No. 13 CV 2256(VB), 2014 WL 1508703, at *9 (S.D.N.Y. Mar. 21, 2014) (alteration in original) (quoting O'Connor v. Pierson, 426 F.3d 187, 204 (2d Cir. 2005)). "To show a violation of substantive due process, plaintiff must: (1) identify the constitutional right at stake, and (2) demonstrate that the government action was conscience-shocking or arbitrary in the constitutional sense." Vaher v. Town of Orangetown, N.Y., 133 F.Supp.3d 574, 601-02 (S.D.N.Y. 2015) (quoting Little v. City of New York, 487 F.Supp.2d 426, 443 (S.D.N.Y.2007)).
In particular, Plaintiff's complaint appears to assert a "pattern of harassment" claim, as recognized by the Second Circuit in Chalfy v. Turoff, 804 F.2d 20, 22 (2d Cir. 1986), and its progeny. "Chalfy claims under § 1983 are substantive due process claims that are available when there is `a true pattern of harassment by government officials.'" Bertuglia v. City of New York, 133 F.Supp.3d 608, 636 (S.D.N.Y. 2015) (quoting Chalfly, 804 F.2d at 22), aff'd sub nom. Bertuglia v. Schaffler, 672 F. App'x 96 (2d Cir. 2016). "The challenged activity must be one that `can properly be characterized as arbitrary, or conscience-shocking, in a constitutional sense.' As such, Chalfy claims are exceedingly difficult to prove." Bertuglia, 133 F. Supp. 3d at 637 (citations omitted) (quoting Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 144 (2d Cir. 1994)). In Chalfy, the Second Circuit affirmed summary judgment dismissing the claim because the plaintiffs had not shown "systematic and intentional harassment." Chalfy, 804 F.2d at 22-23.
Viewed in the light most favorable to Plaintiff, "the evidence falls short of the high threshold necessary for a Chalfy claim." Bertuglia, 133 F. Supp. 3d at 637 (granting summary judgment in favor of defendant). In particular, Plaintiff "has not provided evidence sufficient for a reasonable juror to conclude that Defendant . . . systematically harassed him in a conscienceshocking way." Vaher, 133 F. Supp. 3d at 603 (granting summary judgment in favor of defendants).
In his complaint, Plaintiff alleges that Defendant made "threats" and "bias remarks about [Plaintiff's] sexuality." (Docket No. 2 at § III.C). Even assuming the truth of Plaintiff's vague and uncorroborated allegations, "[t]he law is clear that verbal harassment or even threats alone are not actionable under 42 U.S.C. § 1983." Cotz v. Mastroeni, 476 F.Supp.2d 332, 372 (S.D.N.Y. 2007); see also Bowles v. State, 37 F.Supp.2d 608, 613 (S.D.N.Y. 1999) ("[V]erbal harassment or threats alone do not constitute a violation of any federally protected right and are therefore not actionable pursuant to 42 U.S.C. § 1983."); Ramirez v. Holmes, 921 F.Supp. 204, 210 (S.D.N.Y. 1996) ("Allegations of threats or verbal harassment, without any injury or damage, do not state a claim under 42 U.S.C. § 1983."); Haussman v. Fergus, 894 F.Supp. 142, 149 (S.D.N.Y. 1995) ("[T]he taunts, insults and racial slurs alleged to have been hurled at plaintiff by defendants, while reprehensible if true, do not comprise an infringement of constitutional guarantees.").
Plaintiff has also accused Defendant of following and "stalking" him. (See Docket No. 62 at 4). During his deposition, Plaintiff testified to various contacts he allegedly had with Defendant. (Dunn Dep. Tr. at 42:4-50:21). Almost all of the alleged contacts between Plaintiff and Defendant occurred in connection with criminal investigations by Defendant that resulted in Plaintiff being arrested and charged with crimes to which Plaintiff ultimately pled guilty. (Id.; Starner Dep. ¶ 38). There are two encounters that Plaintiff claims occurred and that Defendant denies. First, Plaintiff claims there was an incident in early 2015 at York Avenue in Monticello, New York, when Defendant allegedly followed Plaintiff and made a remark about Plaintiff's sexuality. (Compare Dunn Dep. Tr. at 24:7-26:14, with Starner Aff. ¶ 32). Second, Plaintiff claims there was an instance in which Defendant came to Plaintiff's house and threatened: "I am going to see to it that you get put away for a very long time." (Compare Dunn Dep. Tr. at 38:8-40:3, with Starner Aff. ¶ 37). Even assuming the truth of Plaintiff's factual assertions, the handful of encounters described by Plaintiff—primarily involving Defendant's performance of his official duties—are insufficient to establish a pattern of intentional and systematic harassment that was arbitrary or conscience-shocking in a constitutional sense. Plaintiff has not provided evidence sufficient for a reasonable juror to conclude that Defendant's actions unlawfully infringed Plaintiff's liberty or property interests or placed "discriminatory burden on a constitutionally protected activity." Chalfy, 804 F.2d at 22. Therefore, Defendant is entitled to summary judgment. Similarly, Plaintiff has failed to establish a basis for the Court to grant Plaintiff's request for "compensation" and a "stay away order."
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.
LORETTA A. PRESKA, Chief Judge.
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.)
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.)
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 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.)
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.
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.)
Rule 56 mandates summary judgment "against a party who fails to make a showing sufficient to establish the 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).
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.
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 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.
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 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.
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.
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 Dept 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 Dept 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.
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.
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:
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).
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).
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.
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.
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.
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 If 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.
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 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 four-month 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.
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).
(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.
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.
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 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 Dept 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.
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.
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.
Not Reported in F.Supp.2d, 2012 WL 1079943
BRICCETTI, District Judge.
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 also assert a state law wrongful death claim.
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.
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.
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.
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).
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.
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)).
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 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.
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:
*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 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 attack was brought on by the notice and, more generally, by the alleged pattern of harassment.
Tragically, Michael died after being found unresponsive at a friend's home on the morning of April 8, 2012. Plaintiffs allege the Putnam County Sheriffs Office informed them Michael's death was caused by an interaction of Xanax with a contraindicated narcotic painkiller.
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.
Plaintiffs assert constitutional claims for Fourth Amendment violations, procedural and substantive due rocess violations, conspiracy, abuse of process, and Monell claims as to the municipal defendants.
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).
"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.").
Accordingly, plaintiffs' false arrest claims are dismissed.
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, 105-06 (2d Cir.2009) (internal citation and quotation marks omitted).
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.
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)).
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.
"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 plaintiffs Fourth Amendment interests against the countervailing governmental interests at stake." Tracy v. Freshwater, 623 F.3d at 96.
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 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.
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).
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.
"[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) (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)).
Plaintiffs assert a Section 1983 claim for conspiracy to violate Michael's constitutional rights.
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.
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.
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.
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.
"[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,
Accordingly, plaintiffs' abuse of process claim is dismissed.
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.
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 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.
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)).
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.
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 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.
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.
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.
"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.
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.
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:
Not Reported in F.Supp.3d, 2014 WL 1508703
