The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM — DECISION & ORDER
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
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
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
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.
As the Second Circuit has stated:
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.
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 ...