MARTIN v. NEW YORK STATE DEPT. OF CORRECTIONAL SERVICES

The opinion of the court was delivered by: Treece, United States Magistrate Judge

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 Council 82.

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

A. Background

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.

B. Immunity from Suit

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

The seventh cause of action in the amended complaint seeks damages against the individual State Defendants pursuant to the HRL, N.Y. Exec. Law §§ 296(1)(a) and (6). Am. Compl. (Docket No. 15), ¶ 58. To the extent this claim is brought pursuant to section 296(6), the individual State Defendants contend it is barred by 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 facts here.

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 violation doctrine.

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 [300] 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 harassed ...