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BROWN v. MIDDAUGH
February 19, 1999
JAMES BROWN, PLAINTIFF,
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.
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
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
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
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
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.
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 §
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 ...