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MARTIN v. NEW YORK STATE DEPT. OF CORRECTIONAL SERVICES
September 26, 2002
DAVID W. MARTIN, PLAINTIFF,
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; LAW ENFORCEMENT OFFICERS UNION COUNCIL 82, AFSCME AFL-CIO; DOMINIC MANTELLO; WILLIAM J. CONNOLLY; CAROL NUITE; AND ROBERT VANDERBECK, DEFENDANTS
The opinion of the court was delivered by: Treece, United States Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff David W. Martin ("Martin") brought this civil action for
damages against the New York State Department of Correctional Services
("DOCS"), Dominic Mantello, William J. Connolly, Carol Nuite and Robert
Vanderbeck ("State Defendants") as well as Law Enforcement Officers Union
Council 82, AFSCME AFL-CIO ("Council 82") for sexual discrimination and
retaliation, conspiracy to discriminate, violation of equal protection
and breach of duty of fair representation pursuant to Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.,
the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § 296 and
42 U.S.C. § 1983 and 1985(3). See Am. Compl. (Docket No. 15). The
parties have consented to have the assigned U.S. Magistrate Judge conduct
any and all further proceedings in this case, including the entry of
final judgment, in accordance with 28 U.S.C. § 636(c) and
N.D.N.Y.L.R. 72.2. Docket No. 31.
By memorandum decision and order dated June 30, 2000, U.S. Magistrate
Judge Ralph W. Smith, Jr., granted Council 82's motion for summary
judgment as to Martin's claims for sexual discrimination, conspiracy to
discriminate and for breach of duty of fair representation with respect
to grievances C97-0582, C97-0882 and the Notice of Discipline. Docket
No. 33. Therefore, the remaining claims are: (1) sexual discrimination
against the State Defendants; (2) retaliation against both the State
Defendants and Council 82; (3) violation of equal protection against the
State Defendants; and 4) breach of the duty of fair representation with
respect to grievances C97-0583, C97-0797, C98-1038 and C99-0302 against
Presently pending are the State Defendants and Council 82's motions for
summary judgment pursuant to Fed.R.Civ.P. 56(b). Docket Nos. 59 &
72, respectively. Martin opposes both motions. Docket Nos. 69 &
83. Oral argument was heard on September 10, 2002, at the James T. Foley
U.S. Courthouse, Room 319, in Albany, New York. Decision was reserved.
For the reasons that follow, the State Defendants' motion is granted and
Council 82's motion is granted.
I. Summary Judgment Standard
Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate only
where "there is no genuine issue as to any material fact and . . . the
moving party is entitled to judgment as a matter of law." The moving
party bears the burden to demonstrate through "pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any," that there is no genuine issue of material fact.
F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To defeat a motion for
summary judgment, the non-movant must "set forth specific facts showing
that there is a genuine issue for trial," and cannot rest on "mere
allegations or denials" of the facts submitted by the movant.
Fed.R.Civ.P. 56(e); see also Rexnord Holdings, Inc. v. Bidermann,
21 F.3d 522, 525-26 (2d Cir. 1994). When considering a motion for
summary judgment, the court must resolve all ambiguities and draw all
reasonable inferences in favor of the non-movant. Nora Beverages, Inc.
v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).
II. State Defendants' Motion for Summary Judgment
Martin has been employed by DOCS at Coxsackie Correctional Facility
("Coxsackie") since 1992. See Am. Compl., ¶ 12. Beginning
approximately six months after the commencement of his employment at
Coxsackie, Martin, a homosexual male, was routinely harassed by his
co-workers. Martin Aff. (Docket No. 68), ¶ 15. Given the span of
years Martin alleges the conduct took place, specific events are
discussed in greater detail as they relate to the causes of action.
Generally, however, Martin's co-workers constantly directed offensive and
degrading sexual comments toward him, such as "pervert," "fucking
faggot," "cock-sucker," "fudge-packer," and "you gay bastard." Id. at
¶ 6. The conduct by co-workers was not limited to offensive
comments. Martin's co-workers also left sexually explicit pictures in his
work area and written statements and pictures on the restroom walls, yard
booths, his time card and his interoffice mail. On one occasion, a
co-worker bared his chest, grabbed his nipple and asked Martin, "Hey
Martin, like what you see?" Id. Martin further alleges that despite his
complaints to his supervisors and union, the conduct got worse and he was
retaliated against for filing complaints.
As an initial matter, the State Defendants contend that several claims
are barred under Eleventh Amendment immunity and/or N.Y. Correct. Law
§ 24. Specifically, DOCS contends that the claims brought against it
under section 1983 and the HRL are barred by the Eleventh Amendment.
Similarly, the individual State Defendants contend that Martin's claim
brought pursuant to the HRL's aider and abettor clause, codified at N.Y.
Exec. Law § 296(6), is barred by the Eleventh Amendment. Finally,
the individual State Defendants contend that Martin's claims brought
pursuant to the HRL are barred by N.Y. Correct. Law § 24.
1. DOCS and the Eleventh Amendment
The Eleventh Amendment bars suit in federal court by a citizen of a
state against a state or its agencies, unless the state has waived
immunity to suit, see Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100-01 (1984), or Congress has abrogated that state's
immunity. See Quern v. Jordan, 440 U.S. 332, 343-44 (1979); see also
Farricelli v. Holbrook, 215 F.3d 241, 244-45 (2d Cir. 2000). It is well
settled that the Eleventh Amendment bars claims against DOCS brought
pursuant to section 1983. See Bryant v. New York State Dep't of Corr.
Serv. Albany, 146 F. Supp.2d 422, 425-26 (S.D.N.Y. 2001) (discussing at
length the line of cases holding that the Eleventh Amendment bars suits
against the state agencies). Therefore, Martin's claims against DOCS
brought pursuant to section 1983 are dismissed.*fn1 Similarly, courts
within this district have held that claims against the state or its
agencies brought in federal court pursuant to the HRL are barred by the
Eleventh Amendment. See Hayut v. State Univ. of N.Y., 127 F. Supp.2d 333,
340 (N.D.N.Y. 2000); Phipps v. New York State Dep't of Labor,
53 F. Supp.2d 551, 558 (N.D.N.Y. 1999). Accordingly, Martin's claims
against DOCS brought pursuant to the HRL are dismissed.
2. Individual State Defendants and the Eleventh Amendment
Section 296(6) states that "[i]t shall be an unlawful discriminatory
practice for any person to aid, abet, incite, compel or coerce the doing
of any of the acts forbidden under this article, or attempt to do so."
Under New York law, "liability must first be established as to the
employer/principal before accessorial liability can be found as to an
alleged aider and abettor." Dewitt v. Lieberman, 48 F. Supp.2d 280, 293
(S.D.N.Y. 1999) (citing Murphy v. ERA United Realty, 674 N.Y.S.2d 415,
417 (2d Dep't 1998)). The individual State Defendants contend that since
the employer/principal is entitled to immunity, Martin cannot satisfy
this requirement for his aider and abettor claim. In essence, the
individual State Defendants are asking for the immunity afforded to DOCS
to be extended to them.
In support of their contention, the individual State Defendants cite a
line of cases where the court dismissed a plaintiff's aider and abettor
claim against his or her co-workers where there was no evidence in the
record that the employer was involved in the discrimination. See
Dewitt, 48 F. Supp.2d at 293; Hicks v. International Bus. Mach.,
44 F. Supp.2d 593, 600 (S.D.N.Y. 1999). The courts, however, dismissed
the claims on the merits, not on the grounds of immunity. Indeed, the
individual State Defendants do not cite, and the Court's independent
research did not find, one case where a HRL aider and abettor claim was
dismissed against individual defendants on Eleventh Amendment immunity
grounds. While Martin is barred from recovering from DOCS, he is not
barred from establishing that DOCS, through its agents, aided, abetted,
incited, compelled or coerced Martin's co-workers into harassing or
retaliating against him. As creative as defense counsel's argument is,
this Court will not extend the holdings in this line of cases to the
Accordingly, the State Defendants' motion for summary judgment on this
ground is denied.
3. N.Y. Correct. Law § 24
The individual State Defendants also contend that Martin's HRL claims
are barred by N.Y. Correct. Law § 24.
"It is well settled that Section 24 shields employees of a state
correctional facility from being called upon to personally answer a state
law claim for damages based on activities that fall within the scope of
the statute." Ierarde v. Sisco, 119 F.3d 183, 186 (2d Cir. 1997); Baker
v. Coughlin, 77 F.3d 12, 14-15 (2d Cir. 1996). The purpose of section 24
immunity is to "permit correction officers to perform the demanding task
of maintaining [prison] safety and security . . . `undeterred by the fear
of personal liability and vexatious suits. . . .'" Id. at 187 (quoting
Arteaga v. State, 532 N.Y.S.2d 57, 63 (1988)). Therefore, section 24
immunity is available in both state and federal courts and applies to
conduct that violates the employer's regulations or that is beyond the
employee's authority. Id.
The Second Circuit has held that alleged sexual harassment by
co-workers does not entitle correctional officers to section 24 immunity
because such conduct is not undertaken in the discharge of his or her
duties. Id. at 188. The individual State Defendants do not contend, and
the Court sees no reason why, the Second Circuit's reasoning should not
also apply to claims of retaliation.
Accordingly, the individual State Defendants' contention is rejected.
C. Statute of Limitations
The State Defendants also contend that Martin's Title VII, HRL and
section 1983 claims are barred by the applicable statutes of
limitations. It is well settled and the parties do not dispute that the
applicable statute of limitations period for Martin's HRL and section 1983
claims is three years. See Warren v. Altieri, No. 01 CIV 3635, 2002 WL
334463, at *2 (S.D.N.Y. Mar. 1, 2002) (section 1983 claim governed by New
York's three-year statute of limitations) (citing Connolly v. McCall,
254 F.3d 36, 40-41 (2d Cir. 2001)); Hansen v. Danish Tourist Bd.,
147 F. Supp.2d 142, 156 (E.D.N.Y. 2001) (statute of limitations for HRL
is three years) (citing VanZant v. KLM Royal Dutch Airlines, 80 F.3d 708,
714 (2d Cir. 1996); N.Y. C.P.L.R. 214(2)).
The State Defendants contend that any claim for sexual discrimination
or retaliation under Title VII that occurred prior to 180 days of Martin
filing his charge of discrimination with the Equal Employment Opportunity
Commission ("EEOC") is barred by the statute of limitations. See State
Def. Mem. of Law (Docket No. 65), p. 8. It is well settled that in New
York, an employee alleging employment discrimination under Title VII must
file a charge of discrimination with the EEOC within 300 days of the
alleged discriminatory conduct. Pikulin v. City Univ. of N.Y.,
176 F.3d 598, 599 (2d Cir. 1999) ("An employment discrimination claim
must be filed with the EEOC within 300 days of the alleged discrimination
in a state, like New York, with a fair employment agency."). Thus, the
applicable limitations period here is 300 days.
Martin filed his discrimination charge with the EEOC on June 1, 1999.
See Rock Decl. (Docket No. 67), Ex. B. Thus, as a general matter, only
those incidents of alleged discriminatory or retaliatory conduct that
occurred on or after August 5, 1998, are timely under Title VII and only
those incidents of alleged discriminatory are retaliatory conduct that
occurred on or after June 1, 1996, are timely under the HRL and section
1983. Martin does not dispute that many of the allegations fall outside
the applicable statute of limitations. Rather, Martin contends that all
alleged discriminatory conduct should be considered under the continuing
Under the continuing violation doctrine, "if a Title VII plaintiff
files an EEOC charge that is timely to any incident of discrimination in
furtherance of an ongoing policy of discrimination, all claims of acts of
discrimination under that policy will be timely even if they would be
untimely standing alone." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d
Cir. 1993). The State Defendants contend that since Martin cannot point
to a policy or mechanism of discrimination, he is not entitled to
bootstrap events that occurred prior to August 5, 1998. Indeed, the
Lambert decision, relied upon by the State Defendants, held that
"multiple incidents of discrimination, even similar ones, that are not
the result of a discriminatory policy or mechanism do not amount to a
continuing violation." Id.
Martin, however, relies on the Second Circuit's decision in Fitzgerald
v. Henderson, 251 F.3d 345, 363 (2d Cir. 2001). In Fitzgerald, the
Second Circuit held that the continuing violation doctrine was applicable
where the plaintiff complained of a "constant stream" and "no
interruption" in the alleged discriminatory conduct. 251 F.3d at 363.
At first glance, it would appear as if Lambert and Fitzgerald are
inapposite to one another. After a thorough comparison, however, the two
cases are distinguishable. Lambert
involved the timeliness of isolated
and unrelated instances of employment decisions, such as, the promotion
of a male employee over female employees. 10 F.3d at 53. Fitzgerald, on
the other hand, involved allegations of a hostile work environment where
the plaintiff alleged that she was subjected to almost daily abuse over a
2 1/2-year period. 251 F.3d at 363.
Moreover, the Supreme Court recently addressed the issue of the
applicability of the continuing violation doctrine in National Railroad
Passenger Corp. v. Morgan, ___ U.S. ___, 122 S.Ct. 2061 (2002). While
the parties did not have the benefit of Morgan at the time they filed
their briefs, the Court applied the same distinction between hostile work
environment claims and claims involving discrete acts of discrimination
that distinguishes Lambert and Fitzgerald. 122 S.Ct. at 2070-72. The
Court reasoned that the trigger of the statute of limitations for claims
of hostile work environment does not occur "on any particular day," but
"over a series of days or perhaps years." Id. at 2073. Thus, the Court
held that the statute of limitations is satisfied for a hostile work
environment claim as long as the plaintiff files "a charge within 
days of any act that is part of the hostile work environment." Id. at
2075. Accordingly, the continuing violation doctrine is applicable to
Martin's claims of a hostile work environment.
Nonetheless, the Morgan Court specifically held that "[a] discrete
retaliatory or discriminatory act `occurred'" for purposes of the statute
of limitations "on the day that it `happened.'" 122 S.Ct. at 2070.
Thus, the acts of retaliation alleged by Martin are only timely under
Title VII if they occurred on or after August 5, 1998, and only timely
under the HRL if they occurred on or after June 1, 1996. Martin alleges
three incidents of retaliation: (1) increased harassment by co-workers;
(2) suspension of his weapon privileges and confiscation of his personal
off-duty firearm; and (3) loss of annual leave and wages.
With regard to the incidents of increased co-worker harassment, Martin
alleges that his co-workers physically assaulted him, falsely accused him
of stealing DOCS property and refused him backup during an inmate brawl.
For determining the timeliness of these allegations, it is assumed that
these allegations are "sufficiently severe" to constitute an adverse
employment action. First, Martin alleges three incidents of physical
assault. The three physical assaults occurred in sometime in 1995
(Martin Dep. (Docket No. 67), pp. 164-65), sometime between December 1992
and December 1994 (id. at p 841) and sometime in 1999 (id. at pp.
830-33). Only this final allegation in which Martin alleges his
co-workers handcuffed him to the arsenal window is timely under Title VII
and the HRL. Second, Martin alleges that on three separate occasions he
was falsely accused of stealing DOCS property. Id. at pp. 201-08.
Specifically, Martin alleges that he was accused of stealing a turkey
breast, a box of chicken patties and two pairs of handcuffs. The record
is unclear when the allegations of stealing the turkey breast and chicken
patties occurred. Thus, for purposes of summary judgment, they are deemed
timely under both Title VII and the HRL. The accusation that Martin
stole two pairs of handcuffs, however, occurred sometime around March of
1996. Thus, this incident is not timely under either Title VII or the
HRL. Finally, Martin alleges that he was refused backup during an inmate
brawl. This incident occurred in mid-1994 (id. at pp. 737-42). Thus,
this incident is untimely under both Title VII and the HRL.
With regard to the suspension of Martin's weapon privileges and
confiscation of his personal off-duty firearm, the acts occurred from
August 1996 to May 1997. Martin Aff., ¶¶ 25-31. Therefore, they
cannot be considered for purposes of Martin's claim for retaliation under
Title VII, but are timely under the HRL. Martin also alleges that Nuite
harassed and retaliated against him with respect to his time and
attendance matters. Specifically, Martin alleges that Nuite routinely
and arbitrarily refused to accept his medical documentation as evidence
of illness or injury. Id. at ¶¶ 32-40. Martin further alleges that
two months after he filed a grievance against Nuite, she issued a Notice
of Discipline against Martin, which included a fine of $1,000.00 and loss
of ten (10) days annual leave. Id. at ¶ 36; Martin Dep (Docket No.
67, Ex. A), p. 678. Since these events occurred between June 1997 and
March 1998, they are untimely for purposes of Martin's retaliation claim
under Title VII, but are timely under the HRL.
D. Sexual Discrimination Claims
Martin alleges that he was subjected to sexual discrimination in
violation of Title VII and the HRL. It is well settled that claims
brought under the HRL are evaluated under the identical standard as
claims brought under Title VII. Tomka v. Seiler Corp., 66 F.3d 1295,
1304 n. 4 (2d Cir. 1995), abrogated on other grounds by Burlington
Indus., Inc. v. Ellerth, 524 U.S. 724 (1988). Accordingly, the Court
evaluates Martin's claims of sexual discrimination under federal and
state statutes simultaneously with reference to federal law.
Title VII makes it "unlawful for an employer . . . to discriminate
against any individual with respect to his [or her] compensation, terms,
conditions, or privileges of employment, because of such individual's
. . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). Encompassed in this
language is a prohibition of sexual harassment. See Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993). A plaintiff seeking relief for
sexual harassment may proceed under a theory of, inter alia, a hostile
work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66
(1986). Martin is proceeding under such a theory.
To state a hostile work environment claim, a plaintiff must establish
that the harassment was "sufficiently severe or pervasive to alter the
conditions of employment and create an abusive working environment."
Harris, 510 U.S. at 21. This requires a showing that the conduct was
both objectively and subjectively offensive, i.e., that a reasonable
person would find the conduct hostile or abusive and that the victim, in
fact, perceived the conduct as such. Id. at 21-22. Finally, to
determine whether the alleged conduct was sufficiently severe or
pervasive, courts must examine "all the circumstances," including the
"frequency . . .; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Id. at 23.
Title VII prohibits both sexual harassment between men and women as
well as same-sex sexual harassment. See Oncale v. Sundowner Offshore
Serv., Inc. 523 U.S. 75, 79 (1998). For purposes of Title VII, however,
the courts have interpreted sex to mean gender and, thus, it is well
settled in this circuit that harassment on the basis of sexual
orientation is not actionable under Title VII. Simonton v. Runyon,
232 F.3d 33, 35-36 (2d Cir. 2000). Indeed, Martin does not dispute that
he may not proceed under the theory that he was