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United States District Court, N.D. New York

February 9, 2004.

ALICE JORDAN, Plaintifffs

The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District Page 2



On June 25, 2001, Plaintiff filed a complaint against Defendants alleging that, while she was employed by Defendant Cayuga County, she was subjected to discrimination because of her sex, in violation of Title VII of the Civil Rights Act of 1964 and the New York Human Rights Law.*fn1 Specifically, Plaintiff claims that she was subject to a sexually hostile work environment and unlawful retaliation when she complained of such. Plaintiff also brings a claim against Cayuga County alleging that she is entitled to damages pursuant to 42 U.S.C. § 1983 as a result of Defendants' violation of the above-stated statutes.


  From September 22, 1986 through August 31, 2001, Plaintiff was a Support Investigator for the Cayuga County Department of Health and Human Services (hereinafter "the Department"). Plaintiff contends that from approximately 1995 to July, 2000 she was subjected to a sexually hostile work environment. She alleges that other employees subjected her to "unwanted touching, degrading remarks . . . of a sexual nature, as well as other lewd behavior and physically violent conduct." See plaintiff's Amended Complaint at ¶¶ 61-65. In June and July, 2000, Plaintiff filed formal complaints with her supervisor, Cheri Jupin, and with Defendant Cayuga County's sexual harassment officer, Andrea Seamans, alleging harassment.

  On July 26, 2000, Defendant Elane Daly, the Department Director, brought twenty-nine disciplinary charges, largely related to incompetency and misconduct, against Plaintiff. Pursuant to § 75 of the New York Civil Service Law, a hearing was conducted and the hearing officer Page 3 found Plaintiff guilty of fourteen of the charges and recommended that Plaintiff be suspended.*fn2 On August 31, 2001, based on the findings of the § 75 Hearing Officer and her finding that Plaintiff was guilty of one additional charge of making a false statement, Defendant Daly terminated plaintiff's employment. Plaintiff alleges that the disciplinary charges and subsequent termination were in retaliation for her complaints of sexual harassment. Plaintiff filed a complaint with the Equal Employment Opportunity Commission and the New York State Division of Human Rights on August 4, 2000, and received a right-to-sue letter on March 29, 2001. Presently before the Court is Defendants' motion for summary judgment as to all claims.


 A. Summary Judgment Standard

  A court should grant a motion for summary judgment only if "there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in a light most favorable to the non-moving party. See id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per Page 4 curiam)). Although discrimination cases often involve a fact-intensive inquiry that precludes summary judgment, a court may award summary judgment where a fact finder could not infer a discriminatory motive. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).

  With these standards in mind, the Court will address each of Plaintiff's claims.

 B. Title VII and New York Human Rights Law Hostile Work Environment Claims Against Defendants*fn3

  1. Defendant County: Title VII liability

  To establish a prima facie case of hostile work environment sexual harassment under either Title VII or New York Human Rights Law based upon the conduct of her co-workers, a plaintiff must demonstrate "(1) harassment that was sufficiently severe or pervasive to alter the conditions of her employment, creating an abusive working environment, and (2) a sufficient basis for imputing the conduct that created the hostile environment to her employer." Ferris v. Delta Page 5 Air lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (citing Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)).

  As stated, the plaintiff must first establish that the evidence will show that the conduct complained of is ""`sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.'"" Rivera v. Prudential Ins. Co. of Am., Nos. 95-CV-0829, 95-CV-0830, 1996 WL 637555, *8 (N.D.N.Y. Oct. 21, 1996) (quoting Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir. 1992) (quotation omitted)). To do so, a plaintiff must demonstrate harassment that consists of "`more than isolated incidents or casual comments that express harassment or hostility.'" Id. (quoting Babcock v. Frank, 783 F. Supp. 800, 808 (S.D.N.Y. 1992)). "`[T]he incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief" Id. (quoting Kotcher, 957 F.2d at 63 (citing Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989))).

  Defendants argue that many of plaintiff's allegations, such as the fact that co-workers played pranks on each other or decorated plaintiff's office on her birthday, are neither pervasive nor sexually-oriented and therefore do not constitute actionable sexual harassment. Defendants also assert that Plaintiff has provided no evidence that any of the acts of which she complains were motivated by gender animus. Further, Defendants argue that Plaintiff has failed to provide testimony that corroborates many of her allegations of harassment, and therefore her case cannot withstand summary judgment. Finally, Defendants contend that the conduct of which Plaintiff complains was welcome. According to Defendants, since Plaintiff used foul language and engaged in banter and pranks on multiple occasions, she may not now complain that, subjectively, she felt that she was harassed. Page 6

  Even disregarding relatively innocuous incidents, such as co-workers decorating each other's offices, Plaintiff has set forth a significant number of serious allegations that can be categorized as pervasive. She has alleged that Defendant Lawford slapped or hit her on a daily basis, sometimes more than once a day, between July of 1999 and June of 2000. She has also alleged that Defendant Lawford deliberately pushed her into office furniture on more than one occasion and once physically cornered her against a wall.*fn4 Plaintiff further alleges that she was continuously subjected to unwanted sexual inquiries, sexual epithets and comments, some of which Defendants have admitted.*fn5 Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has alleged sufficient evidence of pervasive harassment to establish this element of her prima facie case.*fn6

  However, as stated above, where allegations of a hostile workplace are based on the conduct of co-workers, there must be a sufficient basis for imputing the conduct to the employer. Further, where a co-worker or low-level supervisor has perpetrated the harassment, "liability will be imputed to the employer `only if it is negligent, that is, if it either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.'" Ferris, 111 F.3d at 136 (quoting Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 441 (2d Cir. 1999) Page 7 (internal quotation marks omitted)) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 799, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (noting agreement among the circuits that liability should be imputed to employers in cases of co-worker harassment only if the employer was negligent)).

  Plaintiff's first argument is that Defendant County was negligent because it never distributed its most recent sexual harassment policy to her and because it insufficiently investigated both her informal and formal complaints. In response, Defendant County provided evidence of its longstanding anti-harassment policies and its appropriate and prompt response to Plaintiff's formal complaints. Defendant County's policy had a complaint mechanism which obligated the sexual harassment compliance officer to investigate and take remedial action. Although Plaintiff claims that she did not receive the most recent copy of the policy, Defendants point out that Plaintiff acknowledged that she was aware that Defendant County prohibits sexual harassment, that she knew generally of the policy and its terms, and that she took advantage of it by filing an incident report on June 1, 2000, and a formal sexual harassment complaint on July 14, 2000.

  Furthermore, the evidence supports a finding that Defendants handled both of Plaintiff's formal complaints in a prompt, thorough and fair manner. Plaintiff acknowledges that Defendants investigated the incident underlying Plaintiff's June 1 complaint and issued a counseling memorandum to Defendant Lawford. With regard to Plaintiff's July 14 sexual harassment complaint, Defendants engaged an independent labor relations specialist, Murry Solomon, to Page 8 investigate and interview individuals as per Plaintiff s suggestions.*fn7 Plaintiff admits that she and her attorney met with Solomon to clarify the allegations of her complaint. Ultimately, Defendant Lawford received another counseling memorandum based on Solomon's findings and recommendations to Defendant Elane Daly. The Court finds as a matter of law that Plaintiff cannot support a negligence claim based on Defendant County not providing a reasonable avenue for complaint.

  However, Plaintiff also claims that Defendant County is negligent because it knew of the harassment but did nothing about it. Plaintiff alleges that Defendants Jupin and Mancini failed as supervisors to respond to her frequent verbal complaints or to the sexual harassment which they witnessed prior to her formal complaints. For instance, Plaintiff points out that Defendant Jupin admitted that she saw Defendant Lawford grab Plaintiff by the shoulders and further admitted witnessing several activities of which Plaintiff complains, including the presence of an "OB/GYN DOCTOR IS IN" sign above Defendant Lawford's door, a "strip-search sign up sheet" above another employee's desk, and the fact that Defendant Lawford sometimes poked another female co-worker. See Plaintiff's Exhibit "J," Deposition of Cheri Jupin, dated July 29, 2002, at 133, 139. Defendant Mancini also admitted that he knew that inappropriate physical behavior was occurring in the office over a period of a few years. Defendants Mancini and Jupin admitted that they never reported any of these activities to their superiors, nor did they discipline or correct the workers responsible for them. Since Defendant County has failed to acknowledge or rebut Plaintiff's contentions that supervisors ignored many of her initial complaints, Plaintiff has raised Page 9 a material issue of fact. Accordingly, the Court at this time denies Defendants' motion for summary judgment with respect to Plaintiff's Title VII hostile work environment claim against Defendant County.

  2. Liability of Defendant County and Individual Defendants: New York Human Rights Law

  Under the New York Human Rights Law ("NYHRL"), to hold an employer liable for harassment by other employees, a plaintiff must prove that her employer "`became a party to [the discrimination] by encouraging, condoning, or approving it.'" Rivera, 1996 WL 637555, at *12 (quoting Totem Taxi, Inc. v. New York State Human Rights Appeal Bd., 491 N.Y.S.2d 293, 295 (1985)) (other citation omitted).

  As discussed, Plaintiff admits that Defendants took some corrective actions, including verbally reprimanding Defendant Lawford and investigating both of Plaintiff's formal complaints. Plaintiff also admits that Defendant County had a sexual harassment policy. Although Plaintiff disputes the effectiveness of these measures, her allegations are insufficient to show that Defendant County encouraged or condoned the unlawful practices. See Bennett v. Progressive Corp., 225 F. Supp.2d 190, 210 (N.D.N.Y. 2002) ("An employer may disprove condonation by showing that it reasonably investigated the complaint of unlawful harassment and took corrective action." (citation omitted)). Therefore, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's New York Human Rights Law hostile work environment claim against Defendant County.

  An employee is not individually subject to suit under the New York Human Rights Law Page 10 "`if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others.'" Tomka v. Seller Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (quoting [Patrowich v. Chemical Bank, 63 N.Y.2d 541], 542, 483 N.Y.S.2d 659, 473 N.E.2d 11) abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). However, where an individual has actually participated in the discriminatory practice, he may be individually liable under Section 296(6), which prohibits anyone from aiding and abetting discriminatory practices. See Tomka, 66 F.3d at 1317 (collecting cases) (citations omitted). A plaintiff may only recover under Section 296(6), however, where she can show that the defendant "`aided or abetted "a primary violation of the [NY]HRL committed by another employee or the business itself.'"" Bennett, 225 F. Supp.2d at 213 (quotation omitted). Although the Second Circuit has not definitively addressed the issue of whether an individual can aid and abet his/her own conduct, the Northern and Southern Districts have so far disapproved of this theory. See id. at 214 (citing DeWitt v. Lieberman, 48 F. Supp.2d 280, 294 (S.D.N.Y. 1999) (other citation omitted)); see also Rivera, 1996 WL 637555 at *13.

  With regard to the liability of Defendants individually under the NYHRL, Defendants assert that Defendants Mancini, Jupin and Lawford have no power to do more than carry out decisions by directors such as Defendant Daly, and therefore they are not liable as employers under the NYHRL, despite Plaintiff's conclusory allegations to the contrary. Furthermore, Defendants contend that Plaintiff has not alleged that Defendant Daly knew of the alleged harassment.

  Defendants are correct in their assertion that Plaintiff has failed to provide any facts showing that Defendants Lawford, Jupin and Mancini had any independent authority to do more Page 11 than carry out their supervisors' decisions, and they therefore cannot be liable as employers. With regard to Defendant Daly, Plaintiff has alleged only that Defendant Daly violated that NYHRL by retaliating against her. The Court will discuss that claim in detail below.

  With respect to Plaintiff's claim that the individuals are liable as aiders and abettors, Plaintiff expressly acknowledged that she does not claim that Defendants Jupin or Mancini, as supervisors, participated in the harassment. Defendant Lawford cannot be liable for aiding or abetting his own conduct. See Bennett, 225 F. Supp.2d at 214 n.11; see also Mcllwain v. Korbean Int'l Inv. Corp., 896 F. Supp. 1373, 1382-83 (S.D.N.Y. 1995). Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's New York State Human Rights Law hostile work environment claims against the individual Defendants.

 C. Plaintiff's Retaliation Claim*fn8

  Plaintiff brought retaliation claims under Title VII against Defendant County and a retaliation claim under the New York Human Rights Law against Defendants County and Daly.

  To establish a prima facie case of retaliation under Title VII as well as the New York Human Rights Law, a plaintiff must show that (1) she engaged in a protected activity; (2) her employer was aware of that activity; (3) her employer took adverse action against her; and (4) a causal connection exists between the protected activity and the adverse action. See Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001) (quotation omitted); Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997) (citations omitted). For purposes of a retaliation claim: Page 12


an "adverse employment action" constitutes a "materially adverse change" in the employee's working conditions,. . . such as termination, demotion, or a reduction in wages or benefits . . . "[L]ess flagrant reprisals by employers may [also] be adverse." . . . Because there are no bright-line rules as to which employment actions meet the threshold for "adverse," courts must make this determination on a case-by-case basis.
Wilburn v. Fleet Fin. Group, Inc., 170 F. Supp.2d 219, 236-37 (D. Conn. 2001) (internal quotations and citations omitted).

  Once a plaintiff has established her prima facie case of retaliation by a preponderance of the evidence, the burden shifts to her employer to articulate a legitimate, non-discriminatory reason for the employment decision. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993). The burden then shifts back to the plaintiff who must then show that the employer's proffered reason is merely a pretext and that the real reasons for its actions were discriminatory. See McDonnell Douglas, 411 U.S. at 804.

  Plaintiff contends that she engaged in protected activity by informally complaining to Defendant Jupin from 1990 onward, and with greater frequency during the second half of 1999 and the first half of 2000. She also engaged in protected activity when she filed two formal complaints, in June and July of 2000. Plaintiff contends that Defendants County and Daly relocated her to another work area and then suspended and terminated her in retaliation for her complaints.*fn9 Plaintiff further alleges that, unlike several other employees who performed Page 13 deficiently, she never received an opportunity to resign before Section 75 proceedings were initiated.

  The parties agree that, immediately after Plaintiff's formal sexual harassment complaint, she was relocated to another work area. Plaintiff contends that the office move was retaliatory because, although she lost no pay, benefits, or rank, she temporarily lost several conveniences that she used to have, such as a computer and telephone. However, Plaintiff acknowledges that her office was relocated for only one week, that the telephone was restored shortly after the move, and that the office was the same size as her old office. As a result, it is not clear that the move was a materially adverse change in Plaintiff's working conditions.

  However, assuming arguendo that the move did constitute a materially adverse change, Defendants have offered a legitimate, non-retaliatory reason for moving Plaintiff: since she had complained about several individuals in her work area, it was not feasible to move all of the alleged offenders to another area so as to protect her. Furthermore, Plaintiff has offered no direct or circumstantial evidence that Defendants acted in bad faith by moving her. She admits that, during Defendant County's investigation into her complaint, the County Attorney offered to move Defendant Lawford and return Plaintiff to her original office.*fn10 Page 14

  With respect to Plaintiff's suspension and termination, Defendant County maintains such action was the result of her incompetence and misconduct.*fn11

  The Court will first address sua sponte whether Plaintiff is precluded under the doctrine of collateral estoppel from challenging this explanation. Federal courts apply collateral estoppel to prevent a party from re-litigating an identical issue that was previously decided in a state court action so long as the party against whom collateral estoppel is being used had a full and fair opportunity to litigate the issue. See Curry v. Syracuse, 316 F.2d 324, 331 (2d Cir. 2003) (citations omitted). In addition, the issue that was previously decided must be decisive in this action; that is, it must "prove or disprove . . . an essential element of any of the claims set forth in the complaint." See id. at 332.

  After her termination, Plaintiff brought an Article 78 proceeding in the New York Supreme Court Appellate Division, Fourth Department, to challenge the hearing officer's determination. See Jordan v. Daly, 302 A.D.2d 862, 862 (4th Dep't 2003).*fn12 The Fourth Department held that Defendant Daly's decision with respect to the first fourteen charges of Page 15 misconduct and incompetence, and the termination, were supported by substantial evidence, but annulled Defendant Daly's finding on the fifteenth charge of making a false statement. See id. In her retaliation claim, Plaintiff essentially argues that Defendants had no legitimate justification for terminating her. The Fourth Department's decision, since it specifically affirmed the hearing officer and Defendant Daly's findings that Plaintiff was guilty of fourteen charges of misconduct and incompetence, precludes Plaintiff from re-litigating this issue. See id.

  However, Plaintiff further argues that unlike several other deficient employees, she was terminated without a warning or opportunity to resign first.*fn13 Plaintiff alleged that several other employees charged with infractions received an opportunity to resign or face Section 75 hearings but that she never had such an opportunity. Defendants have not responded to these assertions. However, even assuming that others charged with infractions were allowed to resign, Plaintiff has not established that they were "similarly situated" to her with respect to the number of violations or the severity of those violations. Furthermore, Plaintiff has not shown that a forced resignation has any different consequences than termination.

 D. Plaintiff's § 1983 Claims Against All Defendants

  In her complaint, Plaintiff alleges violations of Title VII and the New York Human Rights Law as a basis for her § 1983 claim. See Plaintiff's Amended Complaint at ¶¶ 116. She alleges no equal protection or other constitutional violation. See id. However, neither Title VII nor the New Page 16 York Human Rights Law can serve as the basis for a § 1983 claim. See Meckenburg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 384 n.15 (S.D.N.Y. 1999) (citations omitted); see also Ericson v. City of Meriden, 113 F. Supp.2d 276, 289 (D. Conn. 2000). Since Plaintiff has not alleged a violation of a substantive right distinct from Title VII and the New York Human Rights Law, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's § 1983 claim against all Defendants.


  After carefully considering the file in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein, the Court hereby ORDERS that Defendants' motion for summary judgment is DENIED as to Plaintiff's hostile work environment claim against Defendant Cayuga County under Title VII, 42 U.S.C. § 2000e-2(a)(1); and the Court further

  ORDERS that Defendants' motion for summary judgment is GRANTED as to Plaintiff's New York Human Rights Law § 296 hostile work environment claims against all Defendants; and the Court further

  ORDERS that Defendants' motion for summary judgment is GRANTED as to Plaintiff's retaliation claims under Title VII, 42 U.S.C. § 2000e, and New York Human Rights Law § 296(1)(e); and the Court further

  ORDERS that Defendants' motion for summary judgment is GRANTED as to Plaintiff's 42 U.S.C. § 1983 claims against all Defendants; and the Court further

  ORDERS that Plaintiff's counsel is to initiate a telephone conference through a Page 17 professional conference operator with the Court and opposing counsel at 9 a.m. on February 26, 2004 to set a trial date for this action.


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