house or usual place of abode . . . or by delivering a copy of
the summons and of the complaint to an agent authorized by
appointment or by law to receive service of process." Under New
York law, service on an individual may be effected by personal
service, N.Y.C.P.L.R. 308(1), or "by delivering the summons
. . . at the actual place of business, dwelling place or usual
place of abode of the person to be served and by mailing the
summons to the person to be served at his or her last known
residence or . . . at his or her actual place of business."
N.Y.C.P.L.R. § 308(2).
The affidavit of service on Montanye shows that service was
made on him as Highway Superintendent through the Town Clerk's
Office only without being mailed to his residence or place of
business, a method insufficient to effectuate service on him in
his individual capacity. (DeGiuseppe Aff., Ex. A; Montanye Aff.
¶¶ 3-5.) In his Answer, Montanye raised lack of personal
jurisdiction as an affirmative defense. (Montanye Answer ¶ 30.)
Plaintiff does not argue that Montanye was properly served.
Instead, plaintiff claims that under New York law, defendant is
somehow deemed to have waived this defense by appearing in this
lawsuit and failing to file a motion to dismiss.*fn16 (Pl.
Mem. Opp. Summ. J. at 25-26.) However, this Court can find no
authority for the proposition that Montanye waived an
affirmative defense asserted in his Answer by not filing an
earlier motion to dismiss. To the contrary, other courts in this
Circuit, without requiring a prior motion to dismiss, have
granted summary judgment for improper service when defendants
raised "personal jurisdiction" as an affirmative defense in
their Answer. See Moultry v. City of Poughkeepsie,
154 F. Supp.2d 809, 812 (S.D.N.Y. 2001). Furthermore, despite
Montanye's assertion of this defense, plaintiff has taken no
action to cure the defective service. (Montanye Reply Mem. Supp.
Summ. J. at 3.) Nor has plaintiff shown "good cause" for failing
to effectuate proper service on Montanye in his individual
capacity. FED. R. CIV. P. 4(m); see Moultry, 154 F. Supp.2d at
812. Thus, any claims against Montanye in his individual
capacity must be dismissed.*fn17
In order to proceed with her retaliation claim against
Montanye in his official capacity, plaintiff must show that the
alleged retaliation visited upon her for rebuffing his sexual
advances was done pursuant to an official policy, custom or
practice. Monell v. New York City Dep't of Social Servs.,
436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see
also Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.
1993). Where no municipal policy exists, "liability may
nonetheless arise from `a course of action tailored to a
particular situation' by a municipal decision maker, provided
that `the decision maker possesses final authority to establish
municipal policy with respect to the action ordered.'" Legal
Aid Soc'y v. City of New York, 114 F. Supp.2d 204, 231 (S.D.N.Y.
2000) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469,
481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Thus, to determine
whether plaintiff can proceed against Montanye in his official
capacity, this Court must determine whether
Montanye has final policymaking authority in the particular area
involved. Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000);
see also Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737,
109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). Although Montanye may
have had political influence on the Board, it is indisputable
that he did not have final policymaking authority with respect
to the Board's actions. (Montanye Rule 56.1 Stmt. ¶ 8 (Montanye
did not serve on the Board and did not vote on Board matters).)
Although plaintiff does not develop this argument, the only area
in which Montanye arguably had final policymaking authority was
within the Highway Department. The only conduct implicating
Montanye's authority over the Highway Department is plaintiff's
allegation that he prevented his mechanics from servicing DAB
buses. (Pl. Mem. Opp. Summ. J. at 21.)
While Montanye's conduct with respect to his mechanics'
servicing of DAB buses may have been stressful for plaintiff, it
does not rise to the level of an "adverse employment action"
required for a prima facie retaliation claim. Reed v. A.W.
Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996). A
plaintiff sustains an adverse employment action if he or she
endures a "materially adverse change" in the terms and
conditions of employment. Honey v. County of Rockland,
200 F. Supp.2d 311, 319 (S.D.N.Y. 2002) (citing Richardson v. New
York State Dep't of Corr. Servs., 180 F.3d 426, 446 (2d Cir.
1999)). "To be `materially adverse' a change in working
conditions must be `more disruptive than a mere inconvenience or
an alteration of job responsibilities.'" Id. (quoting Crady
v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th
Cir. 1993)). "A materially adverse change might be indicated by
a termination of employment, a demotion evidenced by a decrease
in wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsibilities,
or other indices . . . unique to a particular situation." Id.
(quoting Crady, 993 F.2d at 136). Furthermore, "mere nastiness
of colleagues or supervisors, or unprofessional behavior, is
. . . not considered adverse employment action for purposes of §
1983." Carlucci v. Kalsched, 78 F. Supp.2d 246, 256 (S.D.N.Y.
2000) (citing Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 713 n. 3 (2d Cir. 1996)). Based on these standards,
plaintiff is unable to show how Montanye's alleged refusal to
have Highway Department mechanics service DAB buses resulted in
a "materially adverse" change in her working conditions.*fn18
Thus, to the extent that plaintiff claims retaliation following
her rejection of Montanye's sexual advances, this claim must be
dismissed. Summary judgment on plaintiff's retaliation claims is
granted in favor of defendants.
V. Sexual Harassment Claims
A. Quid Pro Quo Harassment
The Second Circuit has held that claims of sexual harassment,
brought under the equal protection clause, are actionable under
§ 1983. Saulpaugh, 4 F.3d at 144 ("[S]exual harassment of
women constitutes disparate treatment because of gender and is
actionable under Section 1983."). As stated above, however,
infra Part II., any claim based on actual acts of sexual
harassment is time-barred. To the extent that plaintiff alleges
that she suffered a tangible employment action within the
limitations period as a result of quid pro quo harassment,
this claim cannot survive. As defendants point out, a quid pro
quo harassment claim requires that the harasser be the
plaintiff's supervisor. Kotcher v. Rosa and Sullivan Appliance
Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992) (under quid pro
quo theory, plaintiff must establish that she was denied an
economic benefit because she rejected a sexual advance by a
supervisor); Rivera v. Edenwald Contracting Co., Inc., No. 93
Civ. 8582, 1996 WL 240003, at *3 (S.D.N.Y. 1996) (quid pro quo
harassment "by its very nature, [requires] the plaintiff [to]
show that the sexual advance was made by a supervisor.").
Montanye, however, was not plaintiff's supervisor, nor did he
have the authority to alter the terms of her employment. See
Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994)
("[T]he quid pro quo harasser, by definition, wields the
employer's authority to alter the terms and conditions of
employment. . . ."). Plaintiff makes an unsubstantiated
declaration that Montanye's formal authority over her is
irrelevant as long as he had the political clout to turn her
actual supervisor, the Board, against her. (Pl. Mem. Opp. Summ.
J. at 21.) This contention, unsupported by any legal authority,
is unconvincing. Moreover, simply because Montanye had the
ability to effect plaintiff's working environment does not, as
plaintiff contends, raise an issue of fact as to whether
Montanye was plaintiff's supervisor. (Id. at 29; but cf.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759,
118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) ("If, in the unusual case, it
is alleged there is a false impression that the actor was a
supervisor, when he in fact was not, the victim's mistaken
conclusion must be a reasonable one.").) Adverse conduct by a
co-worker will inevitably affect the working environment of the
employee against whom the actions are directed regardless of the
co-worker's status. See Burlington, 524 U.S. at 762, 118 S.Ct.
2257 ("[a] co-worker can break a co-worker's arm as easily as a
supervisor," but only a supervisor can take tangible employment
action); id. at 760, 118 S.Ct. 2257 (tangible employment
action "requires an official act of the [company]"). For these
reasons, plaintiff is unable to make out a quid pro quo sexual
harassment claim and this claim must be dismissed.
B. Hostile Work Environment*fn19
A plaintiff may state a claim under § 1983 for improper sexual
conduct that creates a hostile work environment. Cohen v.
Litt, 906 F. Supp. 957, 963 (S.D.N.Y. 1995) (citing Saulpaugh,
4 F.3d at 143-44). However, there are no clearly articulated
standards in this Circuit with respect to hostile work
environment claims under § 1983. Id. Without clear instruction
on matter, Title VII provides "significant guidance." Id.
(citing Bohen v. City of East Chicago, Ind., 799 F.2d 1180,
1185-86 (7th Cir. 1986)). Adapting the standards of Title VII to
the equal protection clause, it has been held that a plaintiff
makes out a equal protection hostile work environment claim by
showing (1) intentional harassment, (2) based on sex, (3) under
color of state law, that is (4) sufficiently extensive to render
the work environment hostile to plaintiff. Cohen, 906 F. Supp.
Construing the facts in the light most favorable to plaintiff,
as we must, plaintiff alleges unwelcome behavior directed
against her under color of state law. However, other than
alleging that individual Board members retaliated against her
for complaining of sexual harassment, which we have already held
is not actionable under the equal protection clause, see infra
Part III., plaintiff provides no basis from which to infer that
the Board's conduct was directed against her on the basis of
gender. Although the Board members may have been influenced by
their personal and political connections to Montanye, this is
insufficient to establish a constitutional violation. Thus, the
allegedly retaliatory actions of the Board may not form the
basis for a hostile work environment claim under § 1983. On the
other hand, plaintiff sufficiently alleges that Montanye's
conduct towards her was motivated by her rejection of his sexual
advances — an action arguably based on gender. See infra Part
IV. It is thus necessary to consider whether Montanye's conduct
created a hostile work environment for plaintiff.
Whether an environment is sufficiently hostile or abusive to
support a hostile work environment claim must be "measured by
the totality of the circumstances, including the frequency and
severity of the discriminatory conduct, whether such conduct is
physically threatening or humiliating, and whether the conduct
unreasonably interferes with the plaintiff's work performance."
Kodengada, 88 F. Supp.2d 236 (S.D.N.Y. 2000) (citing Williams
v. County of Westchester, 171 F.3d 98, 100 (2d Cir. 1999)). The
basis for hostile environment claims extends beyond tangible
economic loss. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64,
106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). The test is "whether `the
harassment is of such quality or quantity that a reasonable
employee would find the conditions of her employment altered
for the worse.'" Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62, 70 (2d Cir. 2000) (quoting Torres v. Pisano,
116 F.3d 625, 632 (2d Cir. 1997)) (emphasis in Whidbee). "The
incidents must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive."
Carrero, 890 F.2d at 577.
Montanye's sexual advances towards plaintiff did not occur
within the limitations period. See infra Part II. Although
plaintiff need not show that she was subject to overt sexual
behavior; see Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir.
2001) (hostile work environment claim not limited to sexual
advances or sexual behavior), plaintiff is unable to show that
the allegedly retaliatory conduct directed against her by
Montanye was "sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17,
21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Montanye's actions
did not exhibit the same level of frequency, offensiveness or
abuse that other courts have found sufficient to make out a
hostile work environment claim. See, e.g., Fitzgerald, 251
F.3d at 362-63 (question for jury on hostile work environment
claim when supervisor subjected plaintiff every day to a stream
of unjustified criticisms on her work, berated her about hours
and productivity, attempted to force her to work overtime,
criticized her when she worked scheduled overtime and treated
her more harshly than males and other female employees with whom
he had a sexual relationship); Raniola, 243 F.3d at 621 (issue
of fact on hostile work environment claim when plaintiff
subjected to offensive sex-based remarks, disproportionately
burdensome work assignments, workplace sabotage and a serious
public threat of physical harm); Howley v. Town of Stratford,
217 F.3d 141, 153-56 (2d Cir. 2000) (triable issue of fact on
hostile work environment claim where woman firefighter subjected
to barrage of sexually explicit and degrading insults in the
presence of her subordinates, affecting her ability to lead);
Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997)
(triable issue of fact on hostile work environment claim when
based on repeated racial jokes and epithets). In her most
serious allegations against Montanye, plaintiff claims that he
unilaterally hired a secretary that did not assist her with DAB
functions, prevented his mechanics from working on DAB buses,
threatened to turn the Board against her and refused to
communicate with her concerning issues affecting the Town.
(Lange Aff. ¶¶ 3, 7, 10, 21.) Although Montanye's actions may
have contributed to making plaintiff's working environment more
difficult and uncomfortable, taken together they do not meet the
threshold of severity or pervasiveness required for a hostile
work environment claim. Harris, 510 U.S. at 21, 114 S.Ct. 367;
see also Faragher v. City of Boca Raton, 524 U.S. 775, 788,
118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (conduct must be extreme
to support a hostile environment claim). Moreover, plaintiff
admits that her relationship with Montanye improved after 1998.
(Lange Dep. at 229.) Plaintiff does not cite any case in which
similar conduct was held sufficient to create an issue of fact
on a hostile work environment claim. In fact, plaintiff cites no
legal authority in support of her argument that she was
subjected to a hostile work environment. (Pl. Mem. Opp. Summ. J.
at 21-25.) We conclude that, because plaintiff has not met the
threshold for establishing a triable issue of fact on her
hostile work environment claim, this claim is dismissed. Summary
judgment is granted in favor of defendants on plaintiff's sexual
Although plaintiff may have had a valid legal claim if this
action had been commenced at an earlier date or under a
different legal theory, and although we find Montanye's alleged
conduct reprehensible, the claims presented are insufficient as
a matter of law. Defendants' motions for summary judgment are
therefore granted and the Complaint is dismissed.