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RUCCI v. THOUBBORON
September 30, 1999
MARIANNE RUCCI, PLAINTIFF,
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.
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
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
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
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
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
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.
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