that Reilly's conduct persisted despite Plaintiff's complaints to
her superiors. As previously discussed supra with respect to
Plaintiff's hostile work environment claim, the Complaint
sufficiently alleges conduct by Reilly that could have adversely
affected the terms and conditions of her work environment and
that Defendants permitted this harassment to continue despite
Plaintiff's complaints. Accordingly, the Complaint sufficiently
alleges adverse employment action.
The last question is whether the Complaint sufficiently alleges
facts supporting a causal connection between the alleged adverse
employment action and the protected activity. The Complaint
alleges that Reilly's conduct commenced shortly after (within a
month) her husband filed the affirmative action report against
Reilly. See Compl. at ¶¶ 19-21. The Complaint further alleges
that Plaintiff immediately complained of Reilly's conduct, but
that no action was taken. This temporal proximity and Defendants'
alleged failure to act are sufficient indicia of causation to
withstand Defendant's motion to dismiss. See, e.g., Quinn, 159
F.3d at 769; Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.
The Court is mindful that Plaintiff also asserts claims
pursuant to 42 U.S.C. § 1983, although the statutory and/or
constitutional bases for such claims is unclear from the
Complaint itself. If Plaintiff intends to assert retaliation
claims on any other grounds, see, e.g., Adler v. Pataki,
185 F.3d 35, 41-43, she should move to amend her Complaint
accordingly so Defendants would have fair notice of all claims
she intends to assert.
I. Equal Protection Claim
Defendants next assert that, because Plaintiff has failed to
allege facts that Defendants acted with discriminatory intent,
her § 1983 claim should be dismissed. Defendants also argue that
a § 1983 claim may not be based upon the alleged violations of
Title VII. For the reasons previously discussed, however, the
Court finds that Plaintiff has sufficiently pled facts describing
harassment on account of her gender by Reilly and that DOCS and
Fishkill permitted such harassment to continue. Furthermore, the
Second Circuit has rejected Defendants' argument that a § 1983
claim may not be based on facts giving rise to a Title VII claim.
See Annis v. County of Westchester, 36 F.3d 251, 254-55 (2d
Cir. 1994); Gierlinger v. New York State Police, 15 F.3d 32, 34
(2d Cir. 1994). Thus, the Complaint adequately states an Equal
J. Qualified Immunity
Next, Defendants contend that they are entitled to qualified
immunity because the Complaint fails to allege a clearly
established right alleged to have been violated. Contrary to
Defendants' assertion, freedom from discrimination on account of
gender and race, which are plainly alleged in the Complaint, are
clearly established rights. See Jemmott, 85 F.3d at 67;
Annis, 36 F.3d at 254. Accordingly, Defendants are not entitled
to qualified immunity on this ground.
K. Plaintiff's Cross-Motion to Amend the Complaint
Plaintiff cross-moves to amend her Complaint to assert claims
for violation of N.Y. EXEC. LAW § 296 (the "Human Rights Law" or
"HRL"), the intentional infliction of emotional distress, and
negligent supervision against Mann and Ercole.
FED. R. CIV. P. 15(a) provides that leave to amend "shall be
freely given when justice so requires." Such leave should be
denied, however, when it would be futile, cause undue delay or
prejudice, or when it is sought in bad faith. Foman v. Davis,
371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
Defendants allege that allowing the proposed amendments would
be futile because: (1) there is no evidence that Defendants
intended to discriminate against
Plaintiff; (2) the DHR did not dismiss the charge of
discrimination for administrative convenience and, thus, she is
precluded from maintaining a court action; (3) the tort claims
are barred by the Eleventh Amendment; and (4) the intentional
infliction of emotional distress claim is time-barred.
Defendants' first argument is without merit for the reasons
discussed supra and, thus, warrants no further discussion.
Defendants' second argument is more persuasive. As the Second
Circuit recently discussed:
Subsection 9 of [Executive Law] § 297 provides a
cause of action to any person claiming to be
aggrieved by an unlawful discriminatory practice.
That same subsection, however, precludes a cause of
action if the person has filed a complaint with any
local commission on human rights. We hold that the
prohibition against filing in state court after a
complaint has been filed with the Division of Human
Rights applies to state law claims in federal courts
Whidbee, 223 F.3d at 75. Subsection 9 of § 297 provides,
however, that "where the [DHR] has dismissed such complaint on
the grounds of administrative convenience, . . . [the] person
shall maintain all rights to bring suit as if no complaint had
been filed with the division." N.Y. EXEC. LAW § 297(9).
The evidence before the Court on this issue reveals that
Plaintiff filed a charge of discrimination with the DHR in
November 1997. In September 1999, the DHR found probable cause to
believe that Defendants engaged in unlawful discriminatory
conduct and recommended that matter for public hearing. The DHR
has not dismissed the matter for administrative convenience. The
Court recognizes that the EEOC did issue a right to sue letter
upon Plaintiff's request. The EEOC, however, is not the same as
the DHR. Because the matter is still before the DHR, Plaintiff is
precluded from maintaining an action against Defendants pursuant
to the HRL. Thus, permitting an amendment on this ground would be
For the reasons discussed supra, it would be futile for
Plaintiff to amend her Complaint to assert negligence causes of
action against DOCS and/or Fishkill because of their Eleventh
As to Defendant's fourth argument, that the intentional
infliction of emotional distress claim is time-barred, the last
date referenced in the Complaint is October 1997. Because the
statute of limitations for intentional infliction of emotional
distress claims in New York is one year and the Complaint was not
filed until the year 2000, such a claim would be time-barred.
See N.Y.C.P.L.R. § 215; Bardi v. Warren County Sheriff's
Dep't., 260 A.D.2d 763, 764, 687 N.Y.S.2d 775 (3d Dep't 1999).
Accordingly, permitting this amendment would be futile.
Defendants have not set forth any reasons why it would be
futile for Plaintiff to amend her Complaint to add a cause of
action of negligent supervision against Mann and Ercole.
Accordingly, Plaintiff's motion for leave to amend to add this
negligence cause of action is granted.
For the foregoing reasons, Plaintiff's opposition papers
(docket no. 21) are stricken from the record, Defendants' motion
to dismiss is GRANTED IN PART, and Plaintiff's cross-motion for
leave to amend the complaint is GRANTED IN PART. The Complaint is
DISMISSED IN ITS ENTIRETY as to Defendant Clark. Plaintiff's
Title VII claims against the individual Defendants (Reilly, Mann,
and Ercole) and her state law causes of action against Defendants
DOCS and Fishkill are DISMISSED. Plaintiff may amend her
Complaint to assert a cause of action for negligent supervision
against Mann and Ercole only. In all other respects, Defendants'
motion and Plaintiff's cross-motion are DENIED.
IT IS SO ORDERED.
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