The opinion of the court was delivered by: Edward Korman, Chief Judge, District.
This case stems from allegations of sexual and racial harassment against a now-retired Justice of the New York Supreme Court, James H. Shaw, Jr. ("Shaw"), by his former secretary, Jacqueline Bland ("Bland" or "plaintiff'). Prior to discovery, defendants New York State ("NYS" or the "State"), New York State Unified Court System, Office of Court Administration ("OCA") and Shaw move to dismiss the complaint under Fed R. Cir. P. 12(b). Plaintiff cross-moves for summary judgment under Fed.R.Civ.P. 56(a) claiming that the findings of the State Commission on Judicial Conduct regarding Justice Shaw's conduct towards Ms. Bland require judgment in her favor under principles of issue preclusion.
Plaintiff frames her allegations here as eleven causes of action. In addition to claiming employment discrimination under 42 U.S.C. § 2000e et seq. ("Title VII") based on racial and sexual harassment, and alleging that she was fired in retaliation for her complaints (First through Third Causes of Action), she makes the same claims under 42 U.S.C. § 1983 (Fourth Cause of Action), the New York State Human Rights Law (Sixth through Eighth Causes of Action), and the New York City Human Rights Law (Ninth through Eleventh Causes of Action). She also makes a claim under 42 U.S.C. § 1981 for racial discrimination unconstitutionally impairing her contractual rights relating to her employment (Fifth Cause of Action).
Plaintiff is an adult African-American female. Complaint ¶ 17. She began working as a secretary to Justice Shaw in August 1985, performing general secretarial duties for him; she stopped working with him when she took medical leave on November 21, 1997. Id. ¶¶ 18-19, 23. Plaintiff alleges that she was fired in or about May 1998 after she complained about Shaw's sexually harassing conduct. Id. She was later reinstated by OCA. Id. ¶ 20. She alleges she was paid salary and bene-fits by OCA and subject to its policies regarding the terms and conditions of her employment; the State and OCA have otherwise delegated to defendant Shaw policy-making authority relating to employment in his court. Id. ¶¶ 21-22.
The complaint alleges that shortly after Ms. Bland went to work as Justice Shaw's secretary he began to physically touch her in an uninvited, unprofessional and inappropriate manner. His conduct included but was not limited to pulling her onto his lap, holding her hand, massaging her shoulders, cupping the side of her breast, intertwining his pinky finger in hers, and sitting uncomfortably close to her rather than on his own side of his desk. Defendant Shaw continued engaging in such inappropriate behavior throughout Ms. Bland's employment. Id. ¶¶ 24-26. Plaintiff claims to have objected to this conduct, and to have repeatedly told him that it was unprofessional and unacceptable. Plaintiff claims not to have condoned this conduct in any manner. Id.
Plaintiff also makes claims about verbal harassment, including comments that plaintiff's breasts or "tits" were "voluptuous"; that her husband "never gets thirsty"; that she was losing her "titties and ass" when she had begun to lose weight; that an "old man [the judge] needed a little excitement in his life"; that he did not like it when she wore loose clothing to the office; that her hips were "wide and sexy"; that she should be having sex, and that she should be having sex with him; and that her lips were "sexy," "big," "wide" and "voluptuous." Plaintiff alleges that Justice Shaw also told her about men's pleasure at sucking on breasts, and exhibited gestures depicting such acts, as well as indicating the size of her breasts with his hands. Id. ¶¶ 27-28, 42, 48. Plaintiff also alleges that Justice Shaw's requirement that she use the bathroom in chambers threatened her sense of safety and increased her anxiety. Id. ¶¶ 29-30. Plaintiff further claims that Justice Shaw described affairs he had while married, asked intimate questions, routinely tried to kiss her, pulling her tightly toward him. At least on one occasion he kissed her and put his tongue into her mouth. He is alleged to have asked her to "give an old man a hug" and to have asked her to have sex with him. Id. ¶¶ 41-44. He is also alleged to have described medical procedures he underwent in an obscene way and referred to plaintiff's "big pink nipples." Id. ¶¶ 55, 56. Plaintiff alleges she felt disrespected and degraded and became de-pressed, anxious, emotionally distraught and suffered from migraine headaches. Id. ¶ 51.
Justice Shaw is also claimed to have said a number of disparaging things to her about dark-skinned African-American women, stating that he preferred women who were lighter-complected, such as Ms. Bland. ¶¶ 33-35. Shaw repeatedly asserted to plaintiff that he had the power to fire her, threatening her with the loss of her job if she did not acquiesce or if she complained. Ms. Bland was "afraid to complain to supervisors at OCA" about this conduct because she was afraid she would be fired, and afraid no one would believe her. Id. ¶¶ 52-53.
On or about November 10, 1997, plaintiff alleges that she told Justice Shaw that he was "nasty" and a "chauvinist." On November 12, 1997, Shaw called plaintiff into his office and told her that he would never talk to her again on a personal level because of the possibility of being charged with sexual harassment. When plaintiff agreed, Shaw became angry. Id. ¶¶ 57-58.
On November 14, 1997, plaintiff complained about Shaw's conduct to the OCA EEO officer at Brooklyn Supreme Court. On November 18, 1997, Shaw began to reprimand plaintiff for her unprofessional attitude. Plaintiff allegedly told Shaw that his sexual comments and touching had made her feel uncomfortable. Id. ¶ 62.
In April of 1998, plaintiff's counsel sent a letter to Justice Shaw, referencing the EEOC complaint, requesting that he contact counsel. The letter refers to Ms. Bland as Shaw's "former secretary." Affidavit of Jacqueline Bland dated June 26, 2001,("Pl.Aff.") Ex. C. By letter dated May 28, Shaw responded that in light of the accusations against him and the reference to Ms. Bland as his "former secretary" he was terminating her employment. The letter goes on to state "the nature of the charges makes working together impossible."
Plaintiff had actually been out on medical leave since November of 1997. OCA, which at the time of plaintiff's first complaint had assigned investigators to look into the matter from their EEO office, had offered plaintiff alternative employment at the same or higher salary in a different position in the court system. Plaintiff did not accept this offer, and instead remained out of work on medical leave. When Shaw terminated plaintiff in May of 1998, OCA did not remove plaintiff from the State payroll, and again offered her alternative employment. Affidavit of Chief Administrative Judge Jonathan Lippman of the Unified Court System of the State of New York, dated October 31, 2001, ("Lippman Aff.") ¶¶ 23-25.
On September 3, 1998, plaintiff herself filed a charge of discrimination with the EEOC. The EEOC complaint named the New York State Unified Court System and Shaw as defendants. Pl.Ex. G. The EEOC issued a determination on November 23, 1999 finding reasonable cause to believe that plaintiff had been sexually harassed and retaliated against. Pl.Ex. J. Plaintiff received her right to sue letter on August 18, 2000. Ex. O. The filing date of the complaint in this matter is November 1, 2000.
While the foregoing proceedings were taking place, the New York State Commission on Judicial Conduct took disciplinary action against Justice Shaw. ¶ 65. Both Ms. Bland and another complaining witness, Caroline Rucker, appeared at a hearing before the Commission in July 1999. Although the Commission concluded, after three days of testimony, that the remarks made by Shaw were "inappropriate and demeaning" and merited "severe sanction" it censured him, rather than removing him from the bench, because he would soon be retiring. Pl. Aft. Exs. H, I.
Justice Shaw requested review of the decision of the Commission by the Court of Appeals; in addition, he moved before the Commission for reconsideration on the basis of newly discovered evidence. He presented an affidavit from a new witness, Shelley Williams, who averred, based on her conversations with Ms. Rucker, that the charges were fabricated. After investigation, the Commission determined that the new evidence "did not create a reasonable possibility or a probability that [the] Determination would be altered." Pl.Ex. N. Following this decision, the Court of Appeals unanimously dismissed the request for review of this decision on the ground that it did not have jurisdiction to review the decision not to consider the new evidence. Pl.Ex. P. It also denied review of this determination on appeal of the underlying decision. In re Shaw, 96 N.Y.2d 7,12, 724 N.Y.S.2d 672, 675, 747 N.E.2d 1272 (2001).
I. The Eleventh Amendment
The State and OCA argue that the § 1983 and State and City Human Rights Law complaints against them are barred by the Eleventh Amendment. They are correct. Absent consent to suit in federal court, or an express statutory waiver, the Eleventh Amendment bars a suit in federal court by a citizen of a state against that state or one of its agencies. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Congress possesses only limited authority to abrogate a state's Eleventh Amendment immunity; in order to do so a statute enacted by Congress must (1) unequivocally express Congress's intent to abrogate state immunity and (2) act under a valid exercise of power. Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985).
The Eleventh Amendment renders OCA and the State immune from suit here under § 1983 or under state law because the State of New York has not consented to suit in federal court, and because no express override of State statutory authority has been enacted by Congress in association with § 1983. Trotman v. Palisades Interstate Park Commission, 557 F.2d 35, 38-40 (2d Cir. 1977); Quern v. Jordan, 440 U.S. 332, 343, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). This immunity extends to state-law claims. See Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1248 (2d Cir. 1984)(Pennhurst bars relief on state-law claims in federal court against state agencies). Plaintiffs do not argue otherwise on either point. Accordingly, the § 1983 claims against OCA and the State are dismissed, as are the state law claims.
The Court of Appeals has acknowledged that sovereign immunity also extends to claims under § 1981. Pikulin v. City University of New York, 176 F.3d 598, 600-601 (2d Cir. 1999)(stating that court would have affirmed dismissal of § 1981 claims against CUNY on Eleventh Amendment grounds if there were sufficient factual basis in record on which to find that CUNY was arm of the State); see also Yoonessi v. State University of New York, 56 F.3d 10, 12 (2d Cir. 1995)(denying party permission to appeal from decision of magistrate, affirmed by district judge, that dismissed § 1981 claim on either Eleventh Amendment grounds or on basis of failure to state a claim). Other circuits have also repeatedly affirmed the principle that Eleventh Amendment immunity applies to claims made under 42 U.S.C. § 1981. See, e.g., Thompson v. Washington Metropolitan Area Transit Authority, 2001 WL 1154420, *1 (D.C. Cir. Aug. 9, 2001) (transit authority, as arm of state, was immune from suit under § 1981); Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir.), cert. denied, 531 U.S. 1052, 121 S.Ct. 657, 148 L.Ed.2d 560 (2000) (university, as arm of state, enjoys Eleventh Amendment immunity and is immune to claims under § 1981)
Moreover, every district court case within this Circuit that has considered this issue has held that Eleventh Amendment immunity extends to § 1981. See, e.g., Hill v. Taconic Developmental Disabilities Services Office, 181 F. Supp.2d 303, 322 (S.D.N.Y. 2002)("it is well-settled that § 1981 and § 1983 do not override the Eleventh Amendment immunity afforded states, state agencies, and state officials"); Kulkarni v. City University of New York, 2001 WL 1415200 (S.D.N.Y. Nov. 13, 2001) (dismissing § 1981 claim on basis of Eleventh Amendment); Chinn v. City University of New York School of Law at Queens College, 963 F. Supp. 218 (E.D.N.Y. 1997)(same); Cooper v. New York State Dept. of Mental Health, 2001 WL 456348, *2 (S.D.N.Y. May 01, 2001)("[s]ection 1981 does not abrogate New York State's Eleventh Amendment immunity").
Plaintiff argues that two cases, Brown v. Oneonta, 221 F.3d 329 (2d Cir. 2000), cert. denied, 534 U.S. 816, 122 S.Ct. 44, 151 L.Ed.2d 16 (2001), and the unpublished decision Sutherland v. New York State Dept. of Law, 216 F.3d 1073, 2000 WL 730413 (2d Cir. 2000), support a waiver of immunity here. Neither case approaches doing so. Indeed, under the Second Circuit's rules, the latter case may not even be cited as precedent. Rather, these cases involve dismissals of § 1981 claims on different grounds and neither contains any discussion of the Eleventh Amendment. The claims against the State and OCA in eo nomine under 42 U.S.C. § 1981 and 1983 should be dismissed, as should the pendent state law claims.
C. Claims Relating to State and OCA Harassment Policy
Although the parties have not discussed this issue, it worth noting that plaintiff also seeks relief against the State and OCA for their failures to make and enforce an effective sexual harassment policy in the state courts. See Complaint ¶¶ 6, 59-60; Prayer for Relief (seeking inter alia mandatory relief requiring sexual harassment training for court staff). Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), recognizes a limited exception to the general principle of sovereign immunity that allows a suit for injunctive relief challenging the constitutionality of a state official's actions in enforcing state law or policy. This exception is founded on the theory that such a suit is not one against a state itself, and therefore not barred by the Eleventh Amendment. CSX Transp. v. New York State Office of Real Prop. Servs., 306 F.3d 87, 98 (2d Cir. 2002). However, plaintiff here has not framed her claims as one against any State or OCA official responsible for enforcing or making a sexual harassment training policy. Rather, she has sued the State and the OCA themselves. Moreover, plaintiff makes no allegation that Justice Shaw, the only individual she has sued, was responsible for making or enforcing any such policy. Accordingly, plaintiff's claim fails in this regard as well.
II. Who is An Employer or Employee Under Title VII?
Each of the defendants also contend that they may not properly be held liable under Title VII because Ms. Bland cannot be considered an "employee" as that term is defined in Title VII because, as Justice Shaw's secretary, she was a member of his personal staff, and therefore excluded from the coverage of the statute.
A. The "Personal Staff" of an Elected Official Exemption Under Title VII
Title VII makes it unlawful for an employer to discriminate against an employee on the basis of sex. Butler v. New York State Dept. of Law, 211 F.3d 739, 746 (2d Cir. 2000); 42 U.S.C. § 2000e-2(a). Sexual harassment is treated as a form of discrimination under Title VII. See Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426 (2d Cir. 1999)(citing section e-2(a)(1) as basis for hostile work environment claim). Title VII, however, expressly exempts from the definition of "employee" the following persons:
Any person elected to public office in any state or
political subdivision of any State by the qualified
any person chosen by such officer to be on such
officer's personal staff, or an appointee on the
policy making level or an immediate advisor with
respect to the exercise of the constitutional or
legal powers of the office. The exception set forth
in the preceding sentence shall not include employees
subject to the civil service laws of a State
government, governmental agency or political
42 U.S.C. § 2000e(f). Thus, the provision exempts four categories of workers: (1) elected officers; (2)the individuals chosen by such an officer to be members of his or her "personal staff'; (3) such officer's appointees on the policy making level; or (4) an immediate advisor with respect to the exercise of the powers of the office. In addition, civil service workers are expressly removed from the exemption. The question of who is an exempt employee is a matter of federal, not state law, although state law may clearly illuminate the job responsibilities and status of individual considered under the statute. Calderon v. Martin Co., 639 F.2d 271
, 272-3 (5th Cir. 1981); EEOC v. Reno, 758 F.2d 581
, 584 (11th Cir. 1985) ("state law is relevant insofar as it describes the plaintiff's position, including his duties and the way he is hired, supervised and fired").
This exemption is identical to exemptions under the ADEA (§ 603(f)), the Fair Labor Standards Act (§ 203(e)(2)(c)), and Equal Pay Act and a number of other statutes. Cases construing the scope of the exception arising under these statutes are therefore instructive here. As the Court of Appeals for the Seventh Circuit observed recently:
It turns out to be a definition in wide use. Language
essentially identical to the first clause of
§ 630(f) [in the ADEA and to the FLSA's.
29 U.S.C. § 203(e)] . . . appears in the National
Labor Relations Act, 29 U.S.C. § 158(b)(4)(I);
the Labor-Management Reporting and Disclosure Act,
29 U.S.C. § 402(f); the Employee Retirement Income
Security Act, 29 U.S.C. § 1002(6); the Family and
Medical Leave Act, 29 U.S.C. § 2611(3)
(incorporating § 203(e)); Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e(f); and the
Americans with Disabilities Act,
42 U.S.C. § 12111(4). This means on the one hand that a
search for legislative purpose is futile —
Congress took off the rack language devised, and
often used, for subjects other than employment
discrimination — and on the other hand that a
definition may be secured from opinions that have
addressed these other statutes.
E.E.O.C. v. Sidley Austin Brown & Wood, 315 F.3d 696
, 708 (7th Cir. 2002).
The defendants argue that, because plaintiff is a member of the "personal staff' of a person "elected to public office," she is not an "employee" who enjoys the protections offered by Title VII. Although a few cases have considered this issue in a setting different from the present one, the question of whether an elected judge's secretary falls within the "personal staff' exemption appears to be one of first impression. The Second Circuit has yet to address the "personal staff' exemption, as opposed to other portions of the same statutory provision. The cases relating to § 2000e(f) in this Circuit address the "appointee on a policy making level" portion of the exemption. See, e.g., Butler v. New York State Dept. of Law, 211 F.3d 739 (2d Cir. 2000) (holding on summary judgment the Deputy Bureau Chief in Attorney General's Office was policy maker within meaning of statute so as to exempt her from protection under Title VII); Tranello v. Frey, 962 F.2d 244 (2d Cir. 1992)(holding under ADEA that policy maker must be chosen by elected official in order to fall under exemption); EEOC v. Vermont, 904 F.2d 794 (2d Cir. 1990)(considering under ADEA whether appointed state judges were policy making so as to fall within the exemption, and holding that policy making category was intended to comprise only those policy makers working closely with the elected official), overruled on other grounds, Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991).
Turning first to the language of the statute and its legislative history, plaintiff readily meets the definition of "personal staff' intended by Congress. It is undisputed that Justice Shaw was an "elected official." Lippman Aft. ¶ 5. Under New York law, he was entitled to "appoint at pleasure and remove one law clerk and secretary." Judicial Law § 36. Indeed, the powers of the Chief Administrative Judge expressly exclude the ability to appoint and remove "personal assistants who serve as law clerks and personal secretaries to judges and justices." 22 NYCRR § 80.1(b)(3). Plaintiff, while Shaw's secretary, was paid a salary and benefits by the State of New York and was subject to OCA's employment policies regarding the terms and conditions of her employment, such as health benefits, pension benefits, vacation time and sick time. Pl. 56.1 ¶ 22; See Lippman Aft. at ¶¶ 21-23. However, virtually all other aspects of her employment (including job responsibilities, performance evaluation, tenure, and discipline) were determined by Justice Shaw. Shaw signed her time sheets and scheduled her vacations. Ms. Bland was chosen by Shaw to be his secretary. She worked in chambers with him exclusively and on a one to one basis — indeed, this is the factual predicate behind her complaint of harassment and her claim of injury caused by Justice Shaw. Shaw was listed as the "appointing authority" on the papers relating to her employment, which he also signed. Lippman Aft. Ex. C. OCA maintains a job description with regard to the position, a description including "typical duties." Lippman Aft. Ex. A. A typical description, under "Distinguishing features of work" reads that "Senior Secretaries to Judges provide personal and confidential legal secretarial services and perform other related duties in the . . . Supreme Courts."
Moreover, although OCA recruits for virtually all other non-judicial positions in the trial courts, and may administer competitive exams for such jobs, it does not recruit law clerks or secretaries to judges; that process is entirely left to the individual judges. Lippman Aft. ¶¶ 9-10. Further, the OCA has no power to discipline State Supreme Court Justices. Rather, pursuant to N.Y. Const. Art. VI, an independent body, the State Commission on Judicial Conduct, has been granted that power. Finally, Part 25 of the Rules of the Chief Judge grants the power "to provide for the employees of the unified court system a career and merit system consistent with the Civil Service Law." 22 NYCRR § 25.1, 25.2. Nonetheless, the "Career Service Rules," promulgated under this enactment, do not apply to the law clerks and secretaries to Justices of the Supreme Court. Plaintiff is exempted from the Civil Service rules, as well as the Career Service Rules established by OCA. Lippman Aft. ¶¶ 8-9, 21-23 (explaining Career Service Rules, and their lack of application to judge's secretaries). Plaintiff therefore falls squarely within the terms of the personal staff exemption set out in Title VII.