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BROWN v. MIDDAUGH

February 19, 1999

JAMES BROWN, PLAINTIFF,
v.
DANIEL G. MIDDAUGH, INDIVIDUALLY AND AS SHERIFF OF ONEIDA COUNTY, NEW YORK; M. PETER PARAVATI, INDIVIDUALLY AND AS UNDERSHERIFF OF ONEIDA COUNTY, NEW YORK; LT. ROY MEYERS, INDIVIDUALLY AND AS AN EMPLOYEE OF THE SHERIFF'S DEPARTMENT OF ONEIDA COUNTY, NEW YORK; LT. WILLIAM CHAPPELL, INDIVIDUALLY AND AS AN EMPLOYEE OF THE SHERIFF'S DEPARTMENT OF ONEIDA COUNTY, NEW YORK; SGT. MEYERS, INDIVIDUALLY AND AS AN EMPLOYEE OF THE SHERIFF'S DEPARTMENT OF ONEIDA COUNTY; SGT. GREGORY HUGHES, INDIVIDUALLY AND AS AN EMPLOYEE OF THE SHERIFF'S DEPARTMENT OF ONEIDA COUNTY, NEW YORK; FRED LAMADO, INDIVIDUALLY AND AS A DEPUTY SHERIFF/CORRECTIONS OFFICER OF THE COUNTY OF ONEIDA, NEW YORK; NICK WHITE, INDIVIDUALLY AND AS A DEPUTY SHERIFF/CORRECTIONS OFFICER OF THE COUNTY OF ONEIDA, NEW YORK; JOSEPH LISI, INDIVIDUALLY AND AS AN INVESTIGATOR FOR THE SHERIFF'S DEPARTMENT OF ONEIDA COUNTY, NEW YORK; JOHN DOE, A FICTITIOUS NAME INTENDED TO REPRESENT THE NAMES OF SEVERAL EMPLOYEES OF THE SHERIFF'S DEPARTMENT OF ONEIDA COUNTY, NEW YORK AND/OR THE COUNTY OF ONEIDA, NEW YORK, WHOSE IDENTITIES ARE AS YET UNKNOWN; COUNTY WEST PAGE 173 OF ONEIDA, NEW YORK, DEFENDANTS.[FN1]



The opinion of the court was delivered by: Munson, Senior District Judge.

      MEMORANDUM-DECISION and ORDER

Currently before the court are defendants' motions for summary judgment, which plaintiff opposes, as well as plaintiff's cross-motion to supplement his complaint, which defendants oppose. Following oral argument on February 12, 1999, the court reserved decision on these motions. Having examined their merits carefully, the court denies plaintiff's motion to supplement his complaint; grants defendants Middaugh, Meyers, Chapple, Hughes, Lamanto, White and Lisi's motions for summary judgment; and grants in part and denies in part defendant Paravati and Oneida County's motions for summary judgment.

BACKGROUND

Some familiarity with the background of this Memorandum-Decision and Order is assumed. Plaintiff, a black deputy with the Oneida County Sheriff's Department ("OCSD"), has been employed as a corrections officer at the Oneida County Jail since 1990. He currently is suspended from the OCSD, with pay, purportedly pending the outcome of charges filed in May 1998 for driving while intoxicated and endangering the welfare of a minor. Previously, the court denied plaintiff's motion for a preliminary injunction to lift his suspension. See Brown v. Middaugh, No. 96-CV-1097, 1998 WL 566791 (N.D.N.Y. Sep.3, 1998). His instant action is filed pursuant to Title VII of the Civil Rights Law of 1964 ("Title VII"), 42 U.S.C. § 1981-83, 85-86, New York Executive Law § 296 (the New York Human Rights Law, or "NYHRL") and sundry state common law tort claims. It alleges defendants Oneida County, Sheriff Daniel Middaugh and Undersheriff Peter Paravati, as well OCSD deputies Roy Meyers, William Chapple, Gregory Hughes, Fred Lamanto and Nick White, and OCSD investigator Joseph Lisi, systematically have discriminated, conspired and retaliated against him on the basis of his race.

Specifically, plaintiff submits defendants have not only subjected him to a hostile work environment, but also to various forms of unlawful disparate treatment: retaliation; discriminatory application of OCSD's rules regarding sick time; unfair discipline for tardiness; denial of promotion; discriminatory job task assignments, discipline, and investigation; and unfair job performance evaluations.

Plaintiff also maintains various constitutionally-based causes of action. On July 6, 1995 he was arrested on a charge of possession of a forged instrument in violation of § 170.25 of the New York Penal Code. Roughly four months later, on December 7, 1995, a grand jury issued him a "no bill" on the charge. His arrest, he apprises the court, ran afoul of the Fourth Amendment right because it lacked probable cause. He also insists the motive actuating his attempted prosecution was race, making the action violative of the Fourteenth Amendment's Equal Protection Clause. On February 9, 1996, plaintiff discovered he was the target of an Article 75 proceeding, a civil service disciplinary mechanism with potentially punitive employment consequences. Given the timing of the proceeding, which followed his January 6, 1996 filing of a notice of claim against Oneida County and the OCSD, he contends it was instigated in retaliation for his decision to pursue legal action. Plaintiff further states his Fourteenth Amendment right to due process was violated upon the institution of the Article 75 proceeding, impairing his interest in his good name, reputation, honor and integrity. Oneida County, he submits, sanctions these actions, as it pursues an unconstitutional de facto policy of punishing, retaliating and discriminating against minority members of the OCSD in the terms, privileges and conditions of their employment.

Finally, in addition to his state common law tort claims, which the court addresses supra, plaintiff asserts defendants violated 42 U.S.C. § 1981-82 and 1985-86 by discriminating and conspiring against him on account of race. Defendants deny these and the other charges plaintiff makes, which the court addresses seriatim.

DISCUSSION

I. Standard for Summary Judgment

Rule 56 allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A motion for summary judgment may be granted when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See Id. at 250-251, 106 S.Ct. at 2511.

Courts have long recognized problems unique to the issue of whether to grant summary judgment against Title VII claims, such as those plaintiff raises here. "Because direct evidence of . . . discriminatory intent will rarely be found, `affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)). "However, even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Id. (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985)).

II. Plaintiff's Motion to Supplement His Complaint

Plaintiff moves the court to permit him to supplement his complaint, which already has been amended once. Defendants oppose plaintiff's motion, noting: (1) it was filed on January 29, 1999; and (2) Magistrate Judge Hurd's Order dated October 20, 1998 clearly set November 13, 1998 as the date by which all pleadings must be amended, and January 15, 1999 as the date by which all motions must be filed. The court concurs with defendants: plaintiff's motion to supplement — which, in reality, is really a motion to amend his complaint for a second time — is not timely and must be denied.*fn2

The court turns to the merits of the remaining motions.

III. Defendant Lamanto's Motion for Summary Judgment

Plaintiff concedes defendant Lamanto's summary judgment motion should be granted. See Aff. in Opposition to Dfts' Sum. Judgment Mots., ¶ 33. The court obliges and grants Lamanto's motion.

IV. Plaintiff's Title VII and NYHRL Claims

Title VII prohibits "employers" from undertaking certain discriminatory practices. An "employer," as defined by the act, is "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year, and any agent of such person[.]" 42 U.S.C. § 2000e(a). Although this language appears to allow individual liability under Title VII, courts have found it does not. See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) ("individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII"); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241, n. 2 (2d Cir. 1995) ("supervisory personnel may not be held individually liable under Title VII"). See also U.S. Equal Employment Opportunity Comm'n v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1282 (7th Cir. 1995) ("and any agent" language meant "to ensure that courts would impose respondeat superior liability upon employers for the acts of their agents"). Accordingly, the individual Title VII claims against Middaugh, Paravati, Meyers, Chapple, Hughes, White and Lisi are dismissed. Certain Title VII claims against Oneida County, addressed supra, are not.*fn3

As to plaintiff's NYHRL claim, Executive Law § 296(1)(a) provides, in pertinent part:

  It shall be an unlawful discriminatory practice:
  (a) for an employer . . . because of
  the . . . race . . . of any individual . . . to
  discriminate against such individual in . . . in
  terms, conditions or privileges of employment.

N YExec.Law § 296(1)(a) (McKinney 1993). Construing the term "employer," the New York State Court of Appeals held in Patrowich v. Chemical Bank, 63 N.Y.2d 541, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984), that an individual employee cannot be liable under the NYHRL "if he isn't shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." Patrowich, 483 N.Y.S.2d at 660,473 N.E.2d 11. Meyers, Chapple, Hughes, White and Lisi cannot be liable under this provision because plaintiff has not demonstrated they are "employers" within the meaning of the NYHRL, but Oneida County — and probably Middaugh and Paravati, who as sheriff and undersheriff seemingly would have the power to carry out personnel decisions — potentially may be held liable under this statute.*fn4

This distinction may be without a difference, however. In a different provision, the NYHRL mandates:

  It shall be an unlawful discriminatory practice for
  any person to aid, abet, incite, compel or coerce
  the doing of any of the acts forbidden under this
  article, or to attempt to do so.

N YExec.Law § 296(6) (McKinney 1993). The Second Circuit has interpreted § 296(6) to impose personal liability on any employee "who actually participates in the conduct giving rise to a discrimination claim." Tomka, 66 F.3d at 1317. Although Meyers, Chapple, Hughes, White and Lisi could not be held liable under § 296(1)(a), as aiders and abettors they potentially could face liability under § 296(6) — as might Middaugh and Paravati.

A claim under the NYHRL and under Title VII are essentially identical because "New York courts require the same standard of proof for claims brought under the [NYHRL] as those brought under Title VII." Id., 66 F.3d at 1304 n. 4 (citing Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745 (1985)). See also Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993) (plaintiffs claim under NYHRL "is governed by the same standards as his federal claim"). By examining his Title VII claims, the court necessarily addresses plaintiff's NYHRL allegations.

Title VII prohibits discrimination on the basis of race and sex with respect to the "compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). Plaintiff raises two race-based Title VII claims: (1) he has been subject to disparate treatment; and (2) he has been subject to a hostile work environment. Aside from repudiating these claims, defendants counter that almost all of the alleged incidents comprising his Title VII claims are time-barred.

In states such as New York, where an agency first reviews charges of employment discrimination, claims of harassment must be brought within 300 days of the "alleged unlawful employment practice"; that is, a Title VII claim is time-barred if a plaintiff fails to file a timely charge of discrimination with the EEOC. The statute reads:

  [I]n a case of an unlawful employment practice with
  respect to which the person aggrieved has initially
  instituted proceedings with a State or local agency
  with authority to grant or seek relief . . . such
  charge shall be filed by or on behalf of the person
  aggrieved within three hundred days after the alleged
  unlawful employment practice.

42 U.S.C. § 2000e-5(e)(1). Incidents of discrimination occurring during the 300 days immediately prior to the filing of the EEOC charge usually are the only acts admissible under § 2000e-5(e)(1).

There is a possible reprieve from the 300 day statute of limitations: under limited circumstances, courts in this circuit recognize a "continuing violation exception" to the Title VII time-bar rule. "[I]f a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). Application of the continuing exception violation is rare. "[C]ourts in this circuit consistently have looked unfavorably on continuing violation arguments . . . [and] only `compelling circumstances' will warrant application of the exception to the statute of limitations." Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989). The continuing violation exception typically will "appl[y] to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists . . . or discriminatory employment tests," Lambert, 10 F.3d at 53; and multiple incidents of discrimination, even similar ones not the result of a discriminatory policy or mechanism, will not amount to a continuing violation. See id. A continuing violation "may not be based on the continuing effects of an earlier discrimination . . . or on a completed act of discrimination." Blesedell, 708 F. Supp. at 1414.

A continuing violation may be found "where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). If a continuing violation is shown, a plaintiff is entitled to have a court consider all relevant actions allegedly taken pursuant to the employer's discriminatory policy or practice, including those that would otherwise be time-barred. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996).

Although the Second Circuit has yet to articulate what constitutes "specific and related instances of discrimination," many district courts in this circuit have adopted the Fifth Circuit's test, which it expounded in Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971 (5th Cir. 1983). See, e.g., Detrick v. H & E Machinery, Inc., 934 F. Supp. 63, 67 (S.D.N.Y. 1996); Rivera v. Puerto Rican Home Attendants Services, Inc., 930 F. Supp. 124, 130 (S.D.N.Y. 1996); Dixit v. City of New York Dep't. of General Serv., 972 F. Supp. 730, 736 (S.D.N.Y. 1997); Morris v. Amalgamated Lithographers of America, Local One, 994 F. Supp. 161, 165 (S.D.N.Y. 1998).*fn5

In Berry, the Fifth Circuit, in determining whether specific and related discriminatory acts amount to a ...


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