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November 29, 2000


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


Plaintiff Mildred Gonzalez commenced the instant action pursuant to Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1983 contending that she was discriminated against with respect to the terms and conditions of her employment on account of her gender, race, color, and national origin. Presently before the Court are: (1) Defendants' motion pursuant to FED. R. CIV. P. 12(b)(6) seeking to dismiss the Complaint for failure to state a claim; and (2) Plaintiff's cross-motion for leave to file an amended complaint.


Because this matter is before the Court on Defendants' motion pursuant to FED. R. CIV. P. 12(b)(6), the following facts elicited from the Complaint are accepted as true and presented in the light most favorable to Plaintiff.

Plaintiff is a Hispanic female employed by the New York State Department of Correctional Services ("DOCS") at the Fishkill Correctional Facility ("Fishkill") in the City of Beacon, County of Dutchess, State of New York. Defendant Herbert Reilly ("Reilly") was also employed as a corrections officer at Fishkill. Defendants Sergean Mann ("Mann"), Captain Ercole ("Ercole"), and Deputy Superintendent of Security Services Clark ("Clark") are Plaintiff's superiors and supervisors.

In January 1996, Plaintiff's husband, Jose Gonzalez, who also is a corrections officer at Fishkill, wrote an affirmative action report stating that Reilly created an offensive and hostile work environment on account of race, color, and national origin. Shortly thereafter, Reilly filed an internal complaint against Plaintiff claiming that she was after his job and that she abused male inmates.

On February 2, 1996, Plaintiff complained to her supervisor, Ercole, that Reilly had been taunting her, making faces at her, and throwing papers at her desk. Plaintiff told Ercole that Reilly had stated that "I would have liked to marry you, if your husband wasn't around." Plaintiff also complained to Ercole that "based on the sexually harassing actions that she had experienced and the ongoing, retaliatory and hostile behaviors of Herbert Reilly towards her, that Herbert Reilly was going to `Do something to her.'" Compl. at ¶ 23. Ercole took no action on Plaintiff's complaint.

Following Plaintiff's meeting with Ercole, she began to experience increased problems with Reilly. Reilly entered Plaintiff's job area daily and constantly taunted her with looks, threw paper at her, and dumped trash in her area. On numerous occasions (on February 9, 1996, February 27, 1996, February 29, 1996, April 16, 1996, August 22, 1996, and May 5, 1997), Reilly and the other Defendants refused to respond to Plaintiff's requests for assistance when dealing with inmates, thereby putting her into a life-threatening and dangerous situation. Mann and Ercole knew of the situation and did nothing in response. Moreover, male officers received assistance when they asked for it, but she, as a female, did not.

On February 27, 1996, Reilly intentionally bumped into Plaintiff with great force and then stated "Don't say anything" in a threatening tone. Later that day, Reilly shoved Plaintiff.

On March 4, 1996, Plaintiff discovered that her locker had been defaced, that her name had been crossed off of it, and that it was filled with trash. Based on Reilly's actions that day, Plaintiff believed this to be Reilly's doing.

Reilly frequently used derogatory terms and profanity, such as "Niggers" and "Spics," in Plaintiff's presence and often referred to women as "bitches" despite Plaintiff's requests that he discontinue the use of such language. Reilly also often used other profane language, in spite of Plaintiff's requests that he stop doing so.

In or about May 1997, Plaintiff complained to Mann about Reilly, but Mann declined to take any action. Also in May 1997, Reilly threatened Plaintiff in the presence of other corrections officers saying something to the effect of "Gonzalez is going to pay for this."

On June 12, 1997, Plaintiff received a package at her home addressed to Darnell Broom. Broom was an inmate in Plaintiff's work area at Fishkill. Plaintiff brought the package to Ercole who opened the box and found a book entitled "Secrets to a Better Sex Life." Plaintiff contends that Reilly was the likely source of the package. Ercole investigated the matter and determined that Broome did not send the book to Plaintiff. Neither Ercole nor Mann took any further action with respect to the package or investigated Reilly.

On June 25, 1997, Plaintiff received a subscription to "Penthouse" at her home addressed to Mitchell York, another inmate in her area. An identical incident occurred shortly thereafter, when Plaintiff received another "Penthouse" subscription at her home addressed to Angel Figuerca, another inmate in her work area. Plaintiff obtained copies of the subscription orders from the magazine's publishers and contends that the writing on those forms matches Reilly's handwriting.

Thereafter, Plaintiff filed a criminal complaint with the New York State Police. Reilly was arrested on charges of aggravated harassment. Reilly admitted to the police that he sent the subscriptions. Plaintiff obtained a protective order against Reilly lasting until December 22, 1997.

On July 24, 1997, Defendants suspended Reilly from his position because of his arrest. On October 5, 1997, Mann informed Plaintiff that both she and Reilly would be taking the sergeant's exam at Fishkill. Plaintiff objected and stated that she had an order of protection against Reilly. Ercole also telephoned Plaintiff to tell her that Reilly would be taking the test with her. Ercole apparently stated that he would not preclude Reilly from taking the exam notwithstanding the protective order.

On the morning of the exam, Plaintiff learned that Reilly was going to take the exam at another facility. She also learned that Reilly was transferred to another facility.

On November 28, 1997, Plaintiff filed a charge of discrimination with the New York State Division of Human Right ("DHR"). On February 8, 2000, she received a right to sue letter from the Equal Employment Opportunity Commission ("EEOC"). Plaintiff then commenced the instant action pursuant to Title VII and 42 U.S.C. § 1983 claiming discrimination on account of her gender, race, color, and national origin. Presently before the Court are Defendants' motion to dismiss the Complaint and Plaintiff's cross-motion to amend the Complaint.


A. Rule 12 Standard

As the Second Circuit has stated:

Dismissal of a complaint pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted is not warranted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof. The court is required to accept as true all factual allegations in the complaint and to consider documents attached to or incorporated by reference in the complaint. Although bald assertions and conclusions of law are insufficient, the pleading standard is nonetheless a liberal one.

Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (internal quotations and citations omitted). "The review of such a motion is limited, and the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal. Furthermore, the standard is applied with even greater force where the plaintiff alleges civil rights violations." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotations, citations, and alterations omitted). With this standard in mind, the Court will now address Defendants' motion to dismiss.

B. Eleventh Amendment

Defendants move to dismiss all state law causes of action against DOCS and Fishkill because the Eleventh Amendment bars such an action in federal court. It is well-settled that states may not be sued in federal court absent a clear congressional abrogation of their immunity or the state's express consent. See Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 448 (2d Cir. 1999). Here, Congress has not abrogated New York State's Eleventh Amendment immunity as to the state law causes of action and the State has not consented to such ...

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