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RUCCI v. THOUBBORON

September 30, 1999

MARIANNE RUCCI, PLAINTIFF,
v.
ROBERT D. THOUBBORON, INDIVIDUALLY, ROBERT LE FEVER, INDIVIDUALLY, GERALD P. BUTLER, INDIVIDUALLY, PATRICK J. BROPHY, INDIVIDUALLY, JEREMIAH O'CONNOR, INDIVIDUALLY, DONALD KILLARNEY, INDIVIDUALLY, HAROLD TURNER, INDIVIDUALLY, AND THE COUNTY OF PUTNAM, DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

      OPINION AND ORDER

Plaintiff Marianne Rucci alleges, pursuant to 42 U.S.C. § 1983 (§ 1983), a violation of her Fourteenth Amendment right to equal protection, claiming that the defendants discriminated against her because of her gender. Plaintiff also alleges that defendants have abridged her First Amendment rights, specifically her freedom of speech, the right to petition government for the redress of grievances, and her freedom of association, each in violation of § 1983. Finally, plaintiff alleges a § 1983 claim for a violation of her Fourth Amendment rights.*fn1 Each of the defendants, Robert D. Thoubboron, Robert Le Fever, Gerald P. Butler, Patrick J. Brophy, Jeremiah O'Connor, Donald Killarney, Harold Turner, and the County of Putnam ("the defendants") here make a joint motion to dismiss the complaint in its entirety pursuant to Federal Rule of Civil Procedure 56. For the reasons stated herein, the motion is granted as to the § 1983 equal protection claim in regard to defendants Killarney, O'Connor, Brophy, Le Fever, and Butler, but denied in regard to defendants Turner, Thoubboron, and the County. Moreover, plaintiff's § 1983 claims under the First and Fourth Amendment are dismissed in their entirety.

BACKGROUND

Plaintiff was a corrections officer, employed by the County of Putnam ("the County") from 1990 until she was fired in 1997. Each of the individual defendants named in the amended complaint were officers superior to plaintiff. Killarney was employed by the Putnam County Sheriff's Department ("the Department") as an investigator, and Turner was the County's chief criminal investigator. Le Fever and O'Connor were, at all times relevant to this complaint, employed by the Department as sergeants. Butler was a captain in the Department, Brophy was the County's Undersheriff, and Thoubboron was the elected Sheriff. Plaintiff has also named the County as a defendant.

Plaintiff alleges numerous forms of mistreatment during the course of her employment with the Department. First, in January of 1991, plaintiff alleges that Le Fever told her that pregnancy would not be tolerated by the Department. After this departmental attitude toward pregnancy was allegedly confirmed by plaintiff's shift supervisor, Anton Tino, plaintiff decided to have an abortion. Then, in August of 1992, plaintiff alleges that Thoubboron chose to pass her over for a promotion and promoted three male employees instead. Plaintiff further claims that in December of 1992, Butler contacted plaintiffs physician while she was out on disability and "pressured" him into permitting plaintiff to return to work. Further, while out on disability leave, plaintiff refused to sign a blanket authorization to permit the Department access to all of her medical records, and she therefore was removed from disability status and charged with the loss of sick days instead. Plaintiff filed a grievance through her union, and exercised her right to a hearing under New York state law, and her sick leave accruals were eventually credit back to her.

In December of 1992, after becoming pregnant a second time, plaintiff claims that a supervisor, who is not a defendant in this lawsuit, ordered her to be weighed. In the same month, plaintiff alleges that O'Connor told her that she would be fired for getting pregnant. Shortly thereafter, plaintiff was injured when she tripped at work, and she alleges that Le Fever and Butler "deliberately" did not ask her about the welfare of her fetus in order to reaffirm their "negative attitude towards pregnancy." See Plaintiff's Amended Complaint at ¶ 26.

For the majority of 1993, plaintiff was out on either disability or maternity leave. However, in February of 1993, Thoubboron ordered her to return to work, but plaintiff refused until her own doctor cleared her to do so. Plaintiff eventually agreed to return to work, but, shortly thereafter, again returned to disability leave. Then, in January of 1994, plaintiff claims that Brophy, acting under orders from defendant Turner, forced plaintiff to remain confined from 9:00am to 5:00pm in her home while out on disability. He also required plaintiff to report every Monday to the Department for a discussion on her medical status. Plaintiff filed a complaint protesting these conditions with the Public Employee Relations Board. Soon thereafter, plaintiff was ordered to return to work on light duty in March of 1994, at which time she again elected to exercise her right to a hearing, claiming that she was unable to return to work.

In July 1994, plaintiff returned to "light duty," but she claims that defendants "regularly visited upon plaintiff petty affronts, calculatedly demeaning refusals to act on vacation requests, [and] unprecedented denials of request for personal leave . . ." Plaintiff's Rule 56.1 Statement at ¶ 140. It is somewhat unclear from both the pleadings and the briefs as to which, if any, of the defendants these generalized complaints relate to, but plaintiff did file a grievance regarding the denial of a vacation request in August of 1994.

In December 1994, while plaintiff was working alone in the correctional facility's control room, a "touch-screen" monitor shattered. In response, Butler and Killarney engaged in a lengthy interrogation of plaintiff, informing her that she was suspected of intentionally breaking the monitor, and would be the subject of a felony investigation. These defendants later gave plaintiff a Miranda warning, at which time plaintiffs attorney advised her to exercise her right to remain silent. Two weeks later, a second monitor shattered when plaintiff was not present, and, realizing that the computers were defective, defendants terminated their investigation of plaintiff.

Additionally, plaintiff complains that on the day she learned of this investigation, she became upset and decided to leave work early. Before leaving, plaintiff filled out a "Leave Slip," writing "mental duress" on the form to explain why she was leaving early. The next day, according to plaintiff, Brophy, acting on behalf of Thoubboron, hand delivered a letter to plaintiff stating that she should return to work immediately. Plaintiff returned to work, but, the following day, was ordered by defendant O'Connor to re-draft her "Leave Slip" so as to omit the phrase "mental duress." Plaintiff refused. She alleges she then heard O'Connor tell Le Fever, in reference to plaintiffs refusal, "Throw her on midnights, watch her jump and down."

Plaintiff also claims that in July of 1995, Butler and Le Fever called her to a meeting and informed her that she would be assigned to a midnight tour in the new female correctional facility. The next day, plaintiff learned that several junior, officers, whom she asserts were more junior to her, were promoted, while plaintiff was not.

Because of alleged on-the-job stress related to these incidents, plaintiff took unpaid leave from the Department in 1995. When she was ready to return to work, she was notified that she was would not be able to return until a County physician cleared her, but the Department's delay in scheduling this exam forced her to remain out of work for several more weeks. Plaintiff brought a grievance for the loss of salary while awaiting this exam, and rather than continuing with arbitration, the Department paid plaintiff for this lost time.

Finally, plaintiff alleges, and the defendants do not dispute, that in September of 1996, Butler and Turner informed plaintiff that she was facing felony charges for tampering with public records in the first degree. These allegations related to an incident that occurred on June 13, 1996, while plaintiff was working in the correctional facility. While on duty, officers are required to make rounds of the prison every fifteen minutes, and then indicate in their log that the rounds have been completed. It appears that for a period of a few hours, plaintiff arranged to have a fellow officer make her rounds so that she could take a nap. According to the defendants, however, plaintiff still indicated in her log that she had completed the rounds. Plaintiff was arrested, terminated immediately without pay, and arraigned. While the grand jury chose not to indict plaintiff for this incident, the defendants still pursued a disciplinary hearing against her based upon these charges, and she was ultimately fired after a hearing on the matter.*fn2

DISCUSSION

I. Summary Judgment Standard

A district court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). The party seeking summary judgment has the burden of showing that no genuine factual dispute exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

In ruling on a motion for summary judgment, a court "is not to weigh the evidence. . . . and [is] to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Summary judgment is a "drastic procedural weapon because its prophylactic function, when exercised, cuts off a party's right to present his case to the jury." Garza v. Marine Transp. Lines, Inc., 861 F.2d 23, 26 (2d Cir. 1988) (internal quotations omitted).

Finally, the court must be particularly cautious about awarding summary judgment to a defendant employer where intent is at issue. Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). We are mindful that in cases where the employer's state of mind or motives are relevant, records of the employer will rarely document such factors, and as such, the materials before us in a summary judgment motion "must be carefully scrutinized" for circumstantial evidence about the employer's state of mind and those factors that motivated the challenged course of action. Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); see also Chambers v. TRM Copy Cntrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

II. Equal Protection Claim

A. Applicable Standard

Plaintiff makes no specific attempt to explain the legal basis of her equal protection claim, other than asserting that the defendants mistreated her because she is a woman. Left to surmise as to the nature of plaintiff's purported cause of action, we assume that her gender discrimination claims under § 1983 fall into one of two categories. First, plaintiff appears to allege disparate treatment; for example, her allegation that the defendants refused to promote her because of her gender would constitute such a claim. To show disparate treatment, plaintiff must prove that defendants intentionally discriminated against her because of her gender. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If plaintiff satisfies this burden, the employer must then "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If this is done, the burden of going forward shifts to the plaintiff "to show that [the employer's] stated reason . . . for [its treatment of plaintiff was] in fact pretext." Id. at 804, 93 S.Ct. 1817.

Second, it appears that some of plaintiff's claims, such as her complaint that some of the defendants made disparaging comments about pregnancy, are based on a "hostile work environment" theory. Not all sexual harassment constitutes sex discrimination, but "harassment that transcends coarse, hostile and boorish behavior can rise to the level of a constitutional tort." Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994). To determine whether the plaintiff has shown actionable "harassment," the Court may consider the analogous inquiry under Title VII for guidance. See Boutros v. Canton Regional Transit Auth., 997 F.2d 198, 202 (6th Cir. 1993); Cohen v. Litt, 906 F. Supp. 957, 963-64 (S.D.N.Y. 1995).

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 v. Seiler Corp., 66 F.3d 1295, 1304-05 (2d Cir. 1995) (internal quotations omitted). In Harris v. Forklift Sys., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the Supreme Court reaffirmed that to prevail on this type of sexual harassment claim a plaintiff must show that the harassment was "`sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive environment.'" Id. at 21, 114 S.Ct. 367 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)); Tomka, 66 F.3d at 1305. 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. Given these standards, we will separately analyze the equal protection claim against each of the defendants.

B. Killarney

Plaintiff apparently predicates her allegation of gender discrimination against Killarney solely upon the touch-screen monitor incident. However, because it is clear that the investigation related to that incident was conducted in a good-faith belief that plaintiff had deliberately shattered the monitor, and because plaintiff has made no showing that Killarney's ...


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