The defendant argues that the Court should permit the plaintiff to allege only that claim complaining of an alleged failure to promote on discriminatory grounds. It appears from a close reading of the defendant's papers that the defendant objects to allegations by the plaintiff setting forth alleged discriminatory acts that occurred prior to the alleged failure to promote. Such acts include allegations of sexual harassment, inadequate facilities, and denial of certain job assignments, and according to the defendant are not reasonably related to the failure to promote claim asserted in the plaintiff's original EEOC Complaint. See Complaint PP 11-16. The defendant makes no argument relating to the alleged retaliation asserted in the Complaint.
The plaintiff does not oppose the defendant's argument that acts occurring before the alleged failure to promote on December 31, 1992, are not reasonably related to the charge contained in the original EEOC Complaint. Rather, the plaintiff limited her argument to claiming that certain acts subsequent to the denial of promotion were retaliatory for her making a complaint, are reasonably related to the failure to promote claim, or should be permitted under a theory of "loose pleading."
Applying the legal standard set forth above, the Court will permit the claims of alleged retaliation occurring subsequent to the plaintiff's filing of the EEOC Complaint, and will dismiss all claims of acts occurring prior to the alleged failure to promote.
As to the alleged retaliatory acts, it is clear that such claims may be considered by the Court. See Choi, 939 F. Supp. at 311. Thus, the Court will permit the plaintiff to continue the civil prosecution of the allegations alleged in paragraphs 22-26 of the Complaint. Moreover, the plaintiff attempted to file an second EEOC Complaint alleging retaliation on the part of her employer, but was refused the ability to do so by the NYDHR. Thus, as stated previously, any claim that the plaintiff failed to satisfy procedural prerequisites is of no moment.
As to the allegations of alleged harassing conduct occurring prior to the plaintiff's EEOC complaint claiming a failure to promote, no such allegations will be considered by this Court, unless the plaintiff can show a continuing violation. The acts do not fall within the Choi exceptions, as those exceptions relate solely to subsequent conduct. Moreover, those acts were not contained in either of the plaintiff's EEOC Complaints. The original EEOC Complaint alleged a claim of gender based failure to promote. Claims of sexual harassment, inadequate facilities, and denial of certain job assignments are in no way reasonably related to that express claim. Moreover, the plaintiff's second EEOC Complaint alleged retaliation acts only. Thus, the alleged wrongful conduct set forth in paragraphs 10-21, with the exception of the failure to promote, will not be considered by this Court, absent a showing of a continuing violation.
D. Continuing Violation
In NewYork a plaintiff has 300 days in which to file a charge with the EEOC. 42 U.S.C. § 2000e-5(e). If a plaintiff fails to file a timely charge with the EEOC, then the claim is time-barred. Id. This limitations period can be tolled by evidence of a continuing violation, waiver, estoppel, or equitable tolling, thus allowing the Court to consider incidents occurring outside of the 300-day time frame. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982); Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28, 31 (S.D.N.Y. 1994), aff'd 50 F.3d 3 (2d Cir. 1995). "'Under [the] continuing violation doctrine, where the defendant has engaged in a continuous policy of discrimination, acts in furtherance of that policy are not viewed in isolation. In such circumstances, if the charge has been filed no later than 300 days after the last act by the defendant pursuant to its policy, the plaintiff may recover for earlier acts of discrimination as well.'" Choi, 939 F. Supp. at 311 (citation omitted) (internal quotation marks omitted). This exception provides that where evidence of an ongoing discriminatory policy or practice is present, the Court may consider all of an employer's actions allegedly taken pursuant to such policy, even if some are time-barred. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Nonetheless, "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert v. Genesee Hospital, 10 F.3d 46, 52 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 339, 114 S. Ct. 1612; see Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). A continuing violation may be found if the proof shows a specific and ongoing policy or practice of discrimination, or if an employer allows specific, related instances of discrimination to continue unremedied such that those instances amount to a discriminatory practice or policy. Van Zant, 80 F.3d at 713; Cornwell, 23 F.3d at 703.
Nevertheless, the Court notes that "the continuing violation doctrine is disfavored in this Circuit, and will be applied only upon a showing of compelling circumstances." Lloyd v. WABC-TV, 879 F. Supp. 394, 399 (S.D.N.Y. 1995); see Blesedell v. Mobil Oil Corp., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989); LaBeach v. Nestle Co., Inc, 658 F. Supp. 676, 687 (S.D.N.Y. 1987). As will be shown below, based on the facts in this case, the plaintiff cannot prevail on a theory of continuing violation.
As an initial matter, it is not argued that the defendant maintained a discriminatory policy. Thus, the Court's inquiry is limited to whether the acts occurring outside the limitations period are related to those within. See Blesedell, 708 F. Supp. at 1415 n. 8. However, the plaintiff's sole argument is that other acts of harassment should have been uncovered if the EEOC had conducted an investigation. No showing is made that the conduct complained of, i.e., failure to promote, is related to other alleged harassing conduct occurring outside the 300 day period. The alleged sexual harassment, inadequate facilities, and denial of certain job assignments are in no way related to the denial of a promotion. They are not within the scope of an investigation into a failure to promote, and they do not concern harassment performed in the same manner as that complained of in the original EEOC Complaint. See Rivera v. Puerto Rican Home Attendants Services, Inc., 930 F. Supp. 124, 128 (S.D.N.Y. 1996). Accordingly, allegations of conduct occurring prior to the 300 day limitations period are dismissed, insofar as they relate to the Title VII claim.
Thus, the Court holds that the plaintiff may maintain a Title VII claim as against the State Police only, and only with respect to such acts, occurring within the 300 days prior to the filing of the EEOC Complaint, that relate to the alleged failure to promote, and alleged retaliation for filing the EEOC Complaint.
E. Motion For Dismissal Of 42 U.S.C. § 1983 Claim As Against Certain Defendants
The plaintiff concedes that the 42 U.S.C. § 1983 claims asserted as against the defendants State of New York, the New York State Bureau of Audit and Control, the New York State Division of State Police, and all individual defendants in their official capacities must be dismissed.
As to the defendant McMahon the Court cannot find a single allegation in the Complaint alleging his personal involvement. As the personal involvement of a defendant in the alleged wrongful conduct is a prerequisite to recovery, the claim asserted against the defendant McMahon should be dismissed. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994), quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991).
The remaining defendants for consideration are the defendants Conway and Dennin.
To state a valid civil rights claim under 42 U.S.C. § 1983, a Plaintiff must allege facts showing that a person acting under color of state law deprived the Plaintiff of a right, privilege, or immunity secured by the United States Constitution or the laws of the United States.
West v. Atkins, 487 U.S. 42, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988); Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996); Costello v. Fairfield, 811 F.2d 782 (2d Cir.1987). The Court notes that federal courts may not apply a "heightened pleading standard" to civil rights claims under 42 U.S.C. § 1983. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993). It is undisputed that both Dennin and Conway, as state troopers and the supervisors of the plaintiff act under color of state law. The sole issue for the Court is whether the plaintiff has alleged sufficient facts of a violation of constitutional or federal rights to survive a motion to dismiss.
1. Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(6)
On a dismissal motion for failure to state a claim the general rule is that the allegations in a plaintiff's complaint are deemed to be true and must be liberally construed in the light most favorable to the plaintiff. Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985). A complaint should not be dismissed unless it appears beyond a reasonable doubt that the plaintiff cannot in any way establish a set of facts to sustain her claim which would permit relief. Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986).
2. Deprivation Of Rights Secured By The Constitution And Laws
The right allegedly violated by the defendants is the right to be free from sexual discrimination and sexual harassment.
It is now well-established in this Circuit that "sex discrimination -- is covered by § 1983." Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994). As noted in Annis, "the Supreme Court declared fifteen years ago that individuals have a constitutional right under the equal protection clause to be free from sex discrimination in public employment." Id., citing Davis v. Passman, 442 U.S. 228, 234-35, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979). This Circuit has also held that a plaintiff may maintain a 42 U.S.C. § 1983 action based on sexual harassment. See Annis, 36 F.3d at 254. The Annis Court stated that although sexual harassment does not equal sex discrimination, under certain circumstances, such as harassment "calculated to drive someone out of the workplace, the harassment is tantamount to sex discrimination." Id. In the plaintiff's second cause of action she alleges that she was denied her right to equal protection for the failure to promote and for unequal access to facilities. Complaint P 30. It is claimed by the plaintiff that this is sexual harassment.
Before discussing the elements of an equal protection claim of sexual harassment, the Court notes that unlike the Title VII claim, which limits consideration of allegations to those occurring within 300 days of the filing of the EEOC Complaint,
for the purposes of the plaintiff's second cause of action, a 42 U.S.C. § 1983 claim, the statute of limitations is three years. See Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996); citing Owens v. Okure, 488 U.S. 235, 236, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989). Thus, certain allegations in the Complaint that were excluded from consideration when within the scope of the Title VII claim may be considered when determining whether the plaintiff has alleged a viable 42 U.S.C. § 1983 claim. The Complaint in this case was filed on August 16, 1995. Therefore, all allegations from August 16, 1992, until the filing date may be considered by the Court, and must be assumed to be true, in connection with the defendant's motion to dismiss the 42 U.S.C. § 1983 claim.
"To sustain an equal protection claim of sexual harassment, a plaintiff must show both 'sexual harassment' and an 'intent' to harass based upon that plaintiff's membership in a particular class of citizens." Wise v. New York City Police Dep't, 928 F. Supp. 355, 367 (S.D.N.Y. 1996). There are two forms of sexual harassment that violate Title VII's prohibitions against workplace inequality: (1) quid pro quo and (2) hostile work environment harassment: Tomka v. Seiler Corp., 66 F.3d 1295, 1304-05 (2d Cir.1995), citing Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 64-65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). It is clear from the Complaint and the arguments of counsel that the plaintiff is concerned solely with hostile work environment harassment.
Hostile work environment sexual harassment occurs when an employer's conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Tomka, 66 F.3d at 1305 (internal quotations omitted). The determination of whether there is a hostile or abusive environment in the workplace--from both a reasonable person's standpoint as well as the victim's subjective perception--can only be determined by considering the totality of the circumstances. Tomka, 66 F.3d at 1305 (citation omitted).
Both Conway and Dennin are alleged to have had supervisory authority over the plaintiff. However, this fact alone is insufficient to hold the defendants liable for damages for constitutional violations alleged under § 1983. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). The plaintiff must allege that the two defendants were "personally involved" in actions that cause the deprivation of constitutional rights. Id. This Circuit had stated that personal involvement includes: "(1) direct participation, or (2) failure to remedy the alleged wrong after learning of it, or (3) creation of a policy or custom under which unconstitutional practices occurred, or (4) gross negligence in managing subordinates." Id.; Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
1. Defendant Conway
As to the defendant Conway, the plaintiff has pleaded a viable claim, such that the Court should not dismiss the 42 U.S.C. § 1983 claim asserted against that defendant. All of the following acts occurred within the limitations period and are attributed to Conway by way of direct participation or a failure to remedy the alleged wrong after learning of it: (1) in 1993, the defendant Conway failed to act on a report of improper disclosure of the complaint of racial discrimination alleged against the plaintiff; (2) in 1994 and 1995, the defendant Conway failed to act on reports of the theft of the plaintiff's loaded magazine, and harassing phone calls; (3) in June 1993, the plaintiff was harassed by the defendant Conway after complaining of cheating on the promotional exams; (4) prior to January 12, 1994, the plaintiff was threatened with criminal prosecution, and later that year again threatened with arrest.
Any allegations from prior to the time that the defendant Conway became her supervisor are inapplicable to the claim against Conway. Moreover, the allegation of improper referral to the Employee Assistance Program is inapplicable to the claim asserted against any defendant. In fact the plaintiff had been given an unfavorable review in early 1992 and thus, was properly referred. As to the propriety of the review itself, it occurred before August 16, 1992, and thus, is barred by the applicable statute of limitations. Nevertheless, the plaintiff has alleged facts that, when taken as true allege "sexual harassment," either by direct participation or failure to remedy a known wrong.
2. Defendant Dennin
As to the defendant Dennin, the time period during which he was the plaintiff's supervisor, that is not excluded from consideration by the statute of limitations, is August 16, 1992, through some unspecified time in 1993 when the defendant Conway became the plaintiff's supervisor. After examining the Complaint, the allegations relating to the defendant Dennin during that period of time are that the defendant Dennin allegedly slammed a door in the plaintiff's face and called her a "sick person" who needed help. The Court cannot determine from the Complaint, even assuming all allegations to be true, that any other specific event occurred during the discrete time period set forth above that is attributable to the defendant Dennin. It has long been the law in this Circuit that "more than an episodic pattern" of harassing behavior must be alleged to set forth a claim of sexual harassment. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987) Rule stated in context of summary judgment motion). In this case, as to defendant Dennin, only conclusory assertions and a single event are alleged. Accordingly, the 42 U.S.C. § 1983 claim alleged against the defendant Dennin should be dismissed.
Thus, as to the 42 U.S.C. § 1983 claim, the Court holds that a viable claim is alleged by the plaintiff as against the defendant Conway, although the allegations supporting such claim are limited to those facts occurring on or after August 16, 1992.
F. State Law Claims
The defendant has moved to dismiss the plaintiff's common law causes of action for "discrimination," "harassment," or "misfeasance and/or malfeasance," and the cause of action for "any other causes of action that might be cognizable based upon the facts alleged herein." The plaintiff has not opposed the dismissal of these "claims." Accordingly, the Court hereby dismisses the aforementioned claims.
For the reasons stated above, the Court hereby GRANTS IN PART AND DENIES IN PART the defendants' motion to dismiss the plaintiff's Title VII claim, as set forth herein, and further GRANTS IN PART AND DENIES IN PART the defendants' motion to dismiss the plaintiff's 42 U.S.C. § 1983 claim, as set forth herein, and further GRANTS the defendants' motion to dismiss certain of the plaintiff's state law claims.
IT IS SO ORDERED.
Dated November 23, 1996
at Binghamton, New York
Thomas J. Mc Avoy
Chief U.S. District Judge