United States District Court, N.D. New York
March 17, 2004.
SHARON PFEIFFER, Plaintiff,
LEWIS COUNTY; JOANN DONEY, RALPH FARNEY, ROXAINNA HURLBURT, JOHN LaDUC, DEVERE RUMBLE & DALE ROBERTS, all in their individual capacities & LEWIS COUNTY SHERIFF, GARY JOCK, in his official capacity, Defendants
The opinion of the court was delivered by: THOMAS McAVOY, District Judge
MEMORANDUM DECISION and ORDER
Plaintiff Sharon Pfeiffer commenced the instant action asserting
various claims pursuant to 42 U.S.C. § 1983; 42 U.S.C. § 2000e,
et seq. ("Title VII"), 29 U.S.C. § 206, et seq.
(the "Equal Pay Act" or "ERA"), N.Y. Labor Law § 194 (the "New York
Equal Pay Act") and N.Y. Exec. Law § 296 (the "New York State Human
Rights Law" or "HRL"), arising out of her employment with Defendant Lewis
County (the "County"). Plaintiff also asserts a common law claim of
defamation. Currently pending before the Court are: (1) Defendant John
LaDuc's ("LaDuc") motion for summary judgment; (2) Defendants Devere
Rumble ("Rumble") and Dale Roberts' ("Roberts") motion for summary
judgment; (3) Defendant Gary Jock's ("Jock") motion for summary judgment;
(4) Defendants Lewis County, Joann Doney ("Doney"), Ralph Farney
("Farney"), and Roxainna Hurlburt's ("Hurlburt") motion for summary
judgment; and (5) Plaintiffs appeal of the January 30, 2004 Order of the
Magistrate Judge denying Plaintiff leave to file a Supplemental Second
Plaintiff was hired by the Lewis County Sheriff's Department ("LCSD")
as a "Dispatcher/Jail Guard" in 1986. In 1994, the title of Plaintiff's
position was changed from "Dispatcher/Jail Guard" to
"Dispatcher/Correction Officer" ("D/CO"). Plaintiff's position is a
civil service position. Jock. SMF at ¶ 8.*fn1 The D/CO
position requires Plaintiff to perform the duties of an emergency
services dispatcher, serve in the control room (or dispatch center), and
to perform certain duties pertaining to the supervision and monitoring of
female inmates at the Lewis County Jail. Plaintiff received training as a
corrections officer and as an emergency medical dispatcher.
The primary responsibility of full-time corrections officers
("COs") is to oversee, monitor and supervise inmates being held in the
Public Safety Building. LC SMF ¶ 4. Male inmates are housed in the
cell block. Id. at ¶ 6. COs are assigned to the cell block
and spend their work day in the common area of the cell block.
Id. ¶ 5. Female inmates are housed in holding cells,
Id. at Id. 7. The holding cells are located outside
the cell block across a hallway from the dispatchers' location.
Id. at ¶ 8. COs make routine rounds of the cell block and
the holding cells outside of the formal cell block. Id. at
¶ 9. COs perform body and strip searches on all male inmates when
they return to the cell block. Id. at ¶ 11.
As the name suggests, D/COs have a dual function dispatching
duties and corrections officer duties. The vast majority of the D/COs day
is spent in the dispatch center, a secure room located outside of the
cell block. Id. at ¶ 15.*fn2 D/COs normally sit in an
chair at a telephone console that they use to perform their
functions. Id. at ¶ 16. The D/COs also monitor the female
inmates in the holding cells. Id. at ¶ 19. The holding
cells are visible from the dispatch center and can be monitored without
the D/COs leaving the dispatch center, Id. at ¶ 20. The
only time that a D/CO has any contact with a prisoner is if a female
prisoner needs to be strip searched or if a female prisoner has a problem
that would not be appropriate for a male CO to handle. Id. at
¶ 21. D/COs do not routinely performs rounds of the cell blocks or
the holding cells, they do not routinely interact with the male
prisoners, and they rarely enter the cell block. Id. at ¶¶
For purposes of compensation, D/COs are classified as Grade 18
positions and receive between $13.13 and $15.15 per hour. Id.
at ¶ 25. COs are classified as Grade 23 positions and receive between
$14.92 and $17.55 per hour. Id. at ¶ 26. The pertinent
collective bargaining agreement ("CBA") in effect from 1997-1999 provided
that "[a] $2.00/hr. increase shall be added to the dispatchers regular
rate of compensation while acting as guard to a female inmate. A minimum
of 4 hours must be worked exclusive of call in time before compensation
will be granted." Pl.'s Ex. 10, p. 7. The 2002-2004 CBA changed this
section. That CBA provides that "[i]n the event that a [D/CO] . . . is
acting as a Correction Officer with respect to a female inmate, the
[D/CO] . . . on duty with the most seniority shall receive a $2.00/hr.
increase in her regular rate of compensation." Pl.'s Ex. 18, p. 7. The
2002-2004 CBA further provides that: "[i]n the absence of a . . .
shift supervisor in dispatch, . . . the
employee . . . with the highest seniority shall receive
Sergeant's rate of pay, at the same step as the employee's regular pay."
In October 1999, then Lewis County Sheriff Gary Jock provisionally
appointed Plaintiff to be the dispatch supervisor.*fn3 Jock SMF at ¶
14. At that time, Plaintiff discontinued performing the job
responsibilities of a D/CO. Plaintiff was moved out of the control room
and placed in an office. Plaintiff did not receive a salary increase for
the new position. Jock SMF at ¶ 15. Shortly thereafter, Dennis Lawlee
("Lawlee"), the Sheriff Department's Chief Civil Deputy, announced his
intention to retire. Pl.'s SMF at ¶ LC 28. Jock directed Plaintiff to
assume some of the work that had been performed by Lawlee. To compensate
Plaintiff for this additional work, in February 2000, Plaintiff was given
the part-time position of "Secretary to the Sheriff' and paid
additional wages. Pl.'s SMF at ¶ 36. During this time, Plaintiff also
maintained her position as dispatch supervisor. Id.
In March 2000, the union filed a grievance alleging that the Sheriff
had given Plaintiff a $10,000 per year increase above the negotiated
salary level without bargaining with the union. LC SMF at ¶ 29. The
union and the County ultimately reached a resolution whereby the County
discontinued paying Plaintiff "any wages or salary in excess of that
specified by the Collective Bargaining Agreement." Peterman Aff., Ex. K.
Pursuant to the settlement, the County could contract with Plaintiff to
perform duties in addition to those performed as a D/CO. Id. In
June 2000, Plaintiff and the County entered into an Administrative
Services Agreement ("ASA") pursuant to which Plaintiff continued to
some of the functions of the Chief Civil Deputy and, in exchange,
received $10,000 annually. Peterman Aff., Ex. L.
By its terms, the ASA expired in May 2001. Id. Although
Plaintiff continued to perform work under the ASA beyond May 2001, the
County declined to renew the agreement and Plaintiff did not receive any
additional compensation for work performed in May, June and July, 2001.
Plaintiff contends that, throughout her employment at the LCSD, she
actively and openly campaigned for pay equality for the D/COs, for
supervisor's pay for herself, and for other equal terms and conditions of
employment for female employees of the LCSD. Plaintiff alleges that, in
response to her efforts, she was confronted by hostility, aggression and
malevolence by male members of the LCSD. Plaintiff maintains that,
commencing at the time that LaDuc was appointed Undersheriff in June
2000, she was subjected to a campaign of harassment against her and other
female employees by LaDuc and Defendants Rumble and Roberts. Plaintiff
states that she was subjected to: daily offensive and malicious comments
about her appearance; condescending remarks about her and her office;
comments referring to her office as the "Barbie House;" comments
referring to the female workers as "cute bitches", "ugly bitches" and/or
"fat bitches;" disparaging remarks concerning the dispatchers' ages,
weight and/or dress; having her work"sabotaged;" demands that she be
removed from her supervisory position and replaced with a male employee;
and allegations that she was having an affair with Jock, which was
claimed to be the reason she was appointed to the
dispatch supervisor position. Plaintiff further alleges that LaDuc
recommended that she wear a D/CO uniform, instead of be permitted to wear
In August 2001, Plaintiff requested to use sick bank time from the
Lewis County Sick Leave Bank. Plaintiff contributed to the sick leave
bank for over ten years. Her request was denied. In November 2001,
Plaintiff was returned to her position as a D/CO and resumed performing
the duties attendant to that position.
As of January 1, 2004, LaDuc again became Undersheriff. On one of his
first days back at the LCSD, LaDuc stated to Plaintiff that "I used to be
a little prick, but now I'm taking Viagra." LaDuc also has "tapped"
Plaintiff in the head. Plaintiff also has been required to work weekends,
whereas prior to January 2004, she consistently had all weekends off.
II. STANDARD OF REVIEW
It is well settled that on a motion for summary judgment, the Court
must construe the evidence in the light most favorable to the
non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d
Cir. 1999), and may grant summary judgment only where "there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). An
issue is genuine if the relevant evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment
bears the burden of informing the court of the basis for the motion and
of identifying those portions of the record that the moving party
believes demonstrate the absence of a genuine issue of material fact as
to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the movant is able to
establish a prima facie basis for summary judgment, the burden of
production shifts to the party opposing summary judgment who must produce
evidence establishing the existence of a factual dispute that a
reasonable jury could resolve in his favor. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party
opposing a properly supported motion for summary judgment may not rest
upon "mere allegations or denials" asserted in his pleadings,
Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d
Cir. 1994), or on conclusory allegations or unsubstantiated speculation.
Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). With this
standard in mind, the Court will address the defendant's motion.
a. Expert Witness
Lewis County seeks to exclude the opinions of Plaintiff's proffered
expert witness. Plaintiff retained an expert to provide an opinion
concerning whether the D/CO and CO positions are substantially equal, one
of the elements of her EPA claim. In support of her conclusion, the
expert relied upon the 2002-2004 CBA, documents produced by Defendants
pursuant to Plaintiff's discovery demands, the D/CO and CO job
descriptions, certain pages from a New York State Commission of
Corrections investigation of the LCSD, the LCSD's chain of command, job
descriptions from surrounding counties, Plaintiff's Second Amended
Complaint, and the expert's one day inspection of the LCSD.
Rule 702 of the Federal Rules of Evidence provides that:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the
testimony is the product of reliable principles
and methods, and (3) the witness has applied the
principles and methods reliably to the facts of
As the Rule itself provides, the initial inquiry is whether
"scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue." See United States v. Cook, 922 F.2d 1026, 1036 (2d Cir.
1991) ("Expert testimony is only admissible when such testimony is
helpful to the trier of fact. . . . Such testimony is unnecessary
where the jury is capable of comprehending the facts and drawing the
correct conclusions from them. . . . Indeed, the judge in his
discretion may exclude expert testimony when it is not helpful to the
jury."). The Second Circuit has instructed that "the district court
should not admit testimony that is `directed solely to lay matters which
a jury is capable of understanding and deciding without the expert's
help.'" United States v. Mulder, 273 F.3d 91, 101 (2d Cir.
2001) (quoting United States v. Castillo, 924 F.2d 1227, 1232
(2d Cir. 1991)), cert. denied, 535 U.S. 949 (2002): see
United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir. 1994) ("A
district court may commit manifest error by admitting expert testimony
where the evidence impermissibly mirrors the testimony offered by fact
witnesses, or the subject matter of the expert's testimony is not beyond
the ken of the average juror."). It is within the discretion of the trial
court to determine whether expert testimony will assist the trier of
fact. United States v. Aminy, 15 F.3d 258, 261 (2d Cir. 1994)
("The decision to admit testimony under this Rule is left to the trial
court's discretion and will be overturned only if `manifestly
erroneous.'") (quoting United States v. Diaz, 878 F.2d 608, 616
(2d Cir. 1989)).
In this case, the Court finds that, with one limited exception, the
proposed expert witness would not be helpful to the trier of fact. The
trier of fact is perfectly capable, on its own, to evaluate the various
information relied upon by the expert (as outlined above) to ascertain
whether the D/CO and CO jobs are substantially equal. See, e.g.,
McLean Credit Union, 805 F.2d 1143, 1147 (4th Cir. 1986)
(holding that a jury does not need aid in determining the relative
qualifications of clerical employees at a credit union), vacated in
part on other grounds, 491 U.S. 164 (1989). There is nothing
complicated about the evidence in this case such that it would be helpful
to the trier of fact to have assistance from an "expert." For example,
the first item in the expert's report is an "Analysis of the Lewis County
Sheriff's Department's CO and D/CO Job Descriptions." In this section,
Plaintiff's proffered expert simply compares the two job descriptions and
then offers her opinion that certain responsibilities imposed only upon
the D/CO position "more than offset" certain responsibilities only
imposed upon the CO position. The trier of fact is perfectly capable of
reviewing the job descriptions and forming its own conclusions concerning
the relative equality of the positions without help.
In the second section of the report, the expert next analyzes "working
conditions and hazards." In this section of the report, the expert offers
her opinion concerning the relative stresses and hazards of the D/CO and
CO positions. Once again, there is nothing in this section that is
helpful to the trier of fact. Plaintiff can submit evidence to the trier
of fact concerning the risks attendant to the D/CO and CO positions and
the trier of fact can weigh any differences. A trier of fact is perfectly
capable of understanding the stresses associated with handling emergency
calls, multi-tasking, strip searching female inmates, etc. The
trier of fact similarly can make its own conclusion concerning whether
the stresses and hazards faced by D/COs are equivalent to those faced by
the CO. Significantly, the expert's
conclusion in this regard is not purported to be based upon any
scientific, technical or other specialized knowledge, but purely upon the
expert's personal opinion.*fn5
The third, and final, section of the report pertains to how the LCSD
establishes its salaries. The proffered expert notes that employers
frequently look to other employers to ascertain "external equity" and
establish their own internal procedures to assure "internal equity." With
respect to "external equity," the proffered expert looked at the job
description and pay of similar positions in surrounding counties. Once
again, the trier of fact is perfectly competent to review this same
information and draw its own conclusions concerning the similarity of job
requirements and the equality of pay for similar jobs.
With respect to "internal equity," the expert notes that because "the
LCSD has provided no documents concerning their institutional processes
for deciding internal equity . . . it appears that Lewis County lacks
any system for classifying jobs and determining the
internal consistency of compensation. In my opinion, the absence of
institutional classification and compensation processes addressing
internal salary consistency is a deviation from accepted procedures for
both public and private sector employers that leaves the County's salary
setting open to subjectivity and could lead to the discriminatory
assignment of compensation levels to job titles." It likely is not within
the ordinary purview of lay triers of fact whether accepted procedures
call for an institutional classification and compensation process to
address internal salary consistency. In this regard, expert testimony may
be helpful. Accordingly, the Court will allow the expert to testify on
this limited issue.
In sum, the LC Defendants' motion to preclude the expert testimony is
granted in part and denied in part. The trier of fact is perfectly
capable, without assistance, of reviewing and comparing the various job
descriptions and analyzing any evidence concerning the actual job
functions of the D/CO and CO and to formulate its own conclusions
concerning the similarity (or dissimilarity) of these positions. The
trier of fact is similarly capable of understanding and analyzing any
external pay equity issues without the help of an expert.*fn6 It would,
however, be helpful to the trier of fact to have expert assistance
concerning the accepted procedures for determining internal pay equity.
Thus, the expert will be permitted to testify on this limited issue of
internal pay equity.*fn7
b. Equal Pay Act*fn8
"To prove discrimination under the Equal Pay Act, a plaintiff must show
that: `i) the employer pays different wages to employees of the opposite
sex; ii) the employees perform equal work on jobs requiring equal skill,
effort, and responsibility; and iii) the jobs are performed under similar
working conditions.'" Lavin-McEleney v. Marist College,
239 F.3d 476, 479 (2d Cir. 2001) (quoting Belfi v. Prendergast,
191 F.3d 129, 135 (2d Cir. 1999)); see also
29 U.S.C. § 206(d)(1).
[T]he EPA does not require a plaintiff to
establish an employer's discriminatory intent.
Instead, the EPA makes it illegal for an employer
to pay unequal compensation to those of different
genders for equal work, "except where such payment
is made pursuant to (i) a seniority system; (ii) a
merit system; (iii) a system which measures
earnings by quantity or quality of production; or
(iv) a differential based on any other factor
other than sex." 29 U.S.C. § 206(d)(1). Once
the employer proves that the wage disparity is
justified by one of the EPA's four affirmative
defenses, "the plaintiff may counter the
employer's affirmative defense by producing
evidence that the reasons the defendant seeks to
advance are actually a pretext for sex
discrimination." Belfi, 191 F.3d at 136
(citing Aldrich v. Randolph Cent. Sch.
Dist., 963 F.2d 520, 526 (2d Cir. 1992)).
Ryduchowski v. Port Auth. of New York and New Jersey,
203 F.3d 135
, 142 (2d Cir. 2000).
1. Whether the LCSD Pays Different Wages to Employees of the
The first element of an EPA claim is whether the employer pays
different wages to employees of the opposite sex. Here, there is evidence
in the record from which a fair-minded trier of fact could
reasonably conclude that the LCSD pays different wages to
employees of the opposite sex. For example, there are male COs who
are paid at Grade Level 23 and female D/DOs who are paid at Grade Level
18. Thus, this first element is satisfied.
2. Whether the Employees Perform Equal Work on Jobs Requiring
Equal Skill, Effort, and Responsibility
The second element of an ERA claim is whether the employees perform
equal work on jobs requiring equal skill, effort, and responsibility.
"With regard to the second point, `[a] plaintiff need not demonstrate
that her job is identical to a higher paid position, but only must show
that the two positions are "substantially equal"' in skill, effort, and
responsibility." Lavin, 239 F.3d at 479 (quoting Tomka v.
Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995)). "[W]here jobs are
merely comparable, an action under the Equal Pay Act will not lie."
Lambert v. Genessee HOSP., 10 F.3d 46, 56 (2d Cir. 1993).
"[T]he standard under the Equal Pay Act is job content and not job title
or description." Tomka, 66 F.3d at 1310. Often, "[w]hether two
positions are `substantially equivalent' for Equal Pay Act purposes is a
question for the jury." Lavin, 239 F.3d 476, 480. Of course,
there will be circumstances where the evidence in the record is such that
no fair-minded trier of fact could reasonably conclude that the
two positions are substantially equivalent and, thus, summary judgment
will be proper.
a. The D/CO and CO Positions
Here, there is no question that there is substantial similarity between
the job descriptions of the CO and D/CO positions. The D/CO job
description contains many of the same functions as the CO position. This
is because D/COs are responsible for supervising female inmates. Indeed,
the D/CO position contains many requirements not contained in the
CO job description. However, as discussed, job descriptions are not
dispositive. The relevant inquiry is what the employees actually do on
the job. 29 C.F.R. § 1620.13(e).
There also is no question that, while supervising female inmates, D/COs
actually do perform some of the same job functions as COs such as, for
example, performing strip searches. While this suggests that there is
substantial equivalency in the skill required of the two positions, it
does not mandate a finding that the positions are substantially similar.
"While it is undisputed that there . . . [is some] common ground in
their general job tasks . . . the performance of some common tasks
does not make jobs substantially equal when material differences also
exist." Conigliaro v. Horace Mann School, 2000 WL 45439, at *8
(S.D.N.Y. 2000). The undisputed evidence before the Court is that, among
other things, COs are required to book inmates, screen visitors, inspect
cells and their occupants every half-hour, check cells for
contraband, transport inmates, supervise the visitation and recreation
areas, strip search male inmates, and perform checks on the female
inmates every half-hour. LCSD's Ex. H at pp. 25-27, 32, 35-37.
There is no evidence that Plaintiff or the other D/COs actually perform
any of these functions. See LCSD SMF at ¶¶ 9, 10, 11, 12,
16, 20, 21, 22, 23;*fn9 Pl.'s Aff. at ¶¶ 4 ("I perform
particular [CO] . . . duties pertaining to the supervision
and monitoring of female inmates.") (emphasis supplied); 6, 9 ("D/COs
spend the majority of their time in the Control Room, a/k/a Dispatch
Office."). In fact, at her deposition, Plaintiff testified that she does
not perform routine checks on the female prisoners, she is not required
to enter the main cell block area (where the male prisoners are housed),
she does not perform cell checks, and she does not move any inmates
(female or male) to visitation, outdoor
recreation, or elsewhere. LCSD Ex. I at 63-64, 66, 67, 73-74. While
the D/COs are responsible for "maintaining constant visual supervision
over the [female] inmates [in the holding cell area]," Pl.'s Aff. at
¶ 6, this consists of monitoring the cameras from the dispatch
center, whereas the COs are required to operate from within the cell
blocks or holding areas with physical contact with the inmates. LCSD Ex.
I at p. 53. The undisputed testimony in the record is that the D/COs'
only physical contact with prisoners is with female prisoners that need
to be strip searched, "or if a female prison has a problem that would not
be appropriate for a male Corrections Officer to handle." Rounds Aff. at
¶ 15, LCSD SMF at ¶ 21. Plaintiff testified that her contact with
the female prisoners consists of performing approximately two to five
strip searches a week, which takes approximately five minutes per inmate.
LCSD Ex. I at pp. 60-61. Thus, she devotes approximately 25 minutes of
her workweek strip searching female inmates. Significantly, aside from
continually pointing to the job descriptions and her duties of strip
searching female inmates and maintaining visual surveillance of various
portions of the jail, Plaintiff does not specify any other functions she
performs that are similar to the those of the CO position. See,
e.g., Pl.'s SMF at p.4, ¶¶ 14, 15; pp. 26-28. To the contrary,
the evidence in the record demonstrates that COs have primary
responsibility for interacting with inmates and supervising the jail,
while the D/COs are primarily responsible for performing dispatching
duties. Moreover, there are significantly fewer female inmates than male
inmates. The correctional facility can accommodate up to forty-two
male inmates and two female inmates. Rounds Aff. at ¶ p 6, 17.
According to Plaintiff, the most female inmates ever incarcerated in the
holding cell area at one time was five. Pl.'s Aff. at ¶ 6. Thus, at
most, the D/COs would be required to monitor a maximum of
five female inmates, whereas the COs would be required to
supervise up to forty-seven male and female
Notwithstanding the similarities of the job descriptions and training
requirements for the two positions, the only conclusion that could be
reached from the evidence in the record is that there is a sharp
divergence of actual job duties between the D/CO and CO positions.
Although Plaintiff makes much of the fact that D/COs are ready and able
to fill in as COs and that the D/COs training as corrections officers
enables the LCDS to comply with various state law requirements, "[t]he
EPA does not mandate equal pay for equal competence, effort or intrinsic
worth." Conigliaro, 2000 WL 45439, at *5.
Plaintiff also points to the fact that, pursuant to N.Y. County Law
§ 652(2), "[a] female correction officer or female deputy sheriff who
is authorized to perform correctional duties and has completed training,
as mandated by the state commission of correction, shall be in attendance
in a correctional facility when females are confined in the correctional
facility and shall, when deemed necessary by the sheriff or keeper of the
jail to maintain the order and security of the facility, be in attendance
in any housing unit where females are confined." This statue says nothing
about the duties actually performed by the LCSD's D/COs. By its plain
terms, and as Plaintiff concedes in her memorandum of law, see
Pl.'s Mem. of Law at 12 n.6, all this statute requires is that a female
CO be in attendance; it does not require her to actually do anything. The
fact remains that there is no evidence from which a fair-minded
trier of fact could reasonably conclude that the D/COs actually perform
the same, or
substantially equivalent, work as COs. This compels a finding that
there is not substantial equality between the D/CO and CO positions and
Plaintiff's ERA claim in this regard must, therefore, be dismissed.
b. The Secretary and Dispatch Supervisor Positions
Defendants did not move for summary judgment concerning the Secretary
to the Sheriff and dispatch supervisor positions. In her memorandum of
law in opposition to the motions for summary judgment, Plaintiff raises
these claims and indicates what she intends to prove at trial. Pl.'s Mem.
of Law at 16 n.9. In reply, Defendants make arguments why these two other
claims should be dismissed.
Although the Court frowns upon new arguments being raised in reply
papers, the issue was raised by Plaintiff in her opposition papers.
Defendants then attempted to respond to the issues raised by Plaintiff.
Rather than consider the argument waived, the Court will exercise its
discretion and permit further briefing limited to the issues concerning
the Secretary to the Sheriff and the dispatch supervisor positions.
See Booking v. General Star Management Co., 254 F.3d 414, 418
(2d Cir. 2001). If Defendants wish to pursue these issues, they may file
and serve a memorandum of law not to exceed ten pages within eleven
business days of the date of this Decision & Order. Plaintiff shall
then have eleven business days from the date Defendants file and serve
their memorandum of law in which to file a memorandum of law in
opposition. No reply will be permitted.
3. Whether the D/CO and CO Jobs are Performed Under Similar
Assuming, arguendo, that the work of the D/CO and COs are
substantially equal, their working conditions are not. "The term `similar
working conditions' encompasses two
subfactors: `surroundings' and `hazards.'" 29 C.F.R. § 1620.18(a).
"`Surroundings' measures the elements . . . regularly encountered by a
worker, their intensity and their frequency." Id. "`Hazards'
take into account the physical hazards regularly encountered, their
frequency and the severity of injury they can cause." Id. It is
difficult to conceive how the working conditions and, in particular, the
hazards of the D/CO and CO positions can be considered to be similar. As
discussed, the COs work directly with the inmates in the cell blocks,
see LCSD's Ex. H at p. 26, whereas the D/COs work primarily in
the secure control room. See LCSD SMF at ¶¶ 15, 16, 21.
Plaintiff does not point to any evidence, admissible in form, from which
a fair-minded trier of fact could reasonably conclude that the
working conditions are similar.*fn11 For this reason too, Plaintiff's
EPA claim concerning the D/CO and CO positions must be dismissed.
c. TITLE VII AND THE NEW YORK HUMAN RIGHTS LAW*fn12
1. Discriminatory Wage Setting
Plaintiff claims that the County violated Title VII by intentionally
paying discriminatory wages to the D/COs, including Plaintiff. In support
of this argument, Plaintiff argues that the D/COs requested that the
County Legislature raise their pay from grade 16 to grade 21 (the level
at which COs are paid), that "male members of the Sheriff's Department
became very outraged because they did not believe that
dispatcher/correction officers, who
were primarily female, should earn the same amount of money as
them," the Legislature reviewed pay scales in surrounding areas, and the
Legislature ultimately decided to raise the pay grade from 16 to 17.
According to Plaintiff, the wage setting methodology was discriminatory
because the wages were determined "on the basis of what `upsets' male
members of the Sheriff's Department." Pl.'s Mem. of Law at 20.
To make out a Title VII claim in this regard, Plaintiff must "produce
evidence of discriminatory animus." Belfi, 191 F.3d at 139
(quoting Tomka, 66 F.3d at 1313). Plaintiff has failed to
submit any evidence from which a fair-minded trier of fact could
reasonably conclude that the County intentionally set wages for female
employees lower than those of male employees. In fact, the sole evidence
relied upon by Plaintiff reveals that the concern in setting wages had
nothing to do with gender, but whether D/COs should receive the same
wages as the road patrol and/or corrections officers. Pl.'s Ex. 87 at pp.
108-120.*fn13 For example, Defendant Hurlburt, a County legislator,
testified at deposition that:
My whole feeling on it was right from the
beginning was they objected to dispatch having the
same pay scale as road patrol. Their statement to
me was that as road patrol they were subject to
personal injury at any time and dispatch did not
have that exposure and they didn't feel that we
should have we should consider making
dispatch and road patrol on the same level. It
didn't have anything to do with who, you know, sex
it was, they didn't want the pay the same because
they didn't feel that the exposure was the same.
Which is the reason we did the comparison with
dispatch in other counties.
Id. at 108.
This is corroborated by the affidavit of Donald Sawyer, submitted by
Plaintiff. In his affidavit, Sawyer states as follows:
I observed that male members of the Sheriff's
Department became very outraged because they did
not believe that [D/COs], who were primarily
female, should earn the same amount of money as
I was notified by Sheriff Jock that certain male
members of the department went to the Board of
Legislators and complained that the [D/COs] should
not earn the same amount of money as the road
Pl.'s Ex. 1 at ¶¶ 6-7.*fn14
Hurlburt further testified that the County conducted a survey of wages
in surrounding counties and obtained wage figures for both dispatchers
and for corrections officers. Id. at 113-118. Although
Plaintiff complains that the study was flawed because surrounding
counties did not have hybrid D/CO positions, the evidence in the record
demonstrates that the County accounted for this fact. Hurlburt testified
that the County picked a wage "somewhere in the middle [between the
dispatch wage and the corrections officer wage] where it would be fair."
Id. at 117.*fn15 Although the fact that there were no male
D/COs and no female COs or road
patrol officers could raise suspicions that there is some sort of
discrimination going on,*fn16 the fact of the matter is that Plaintiff
has failed to submit sufficient evidence of discriminatory animus upon
which a jury could return a verdict in her favor. See Aldrich v.
Randolph Central Sch. Dist., 963 F.2d 520, 528 (2d Cir. 1992). The
only conclusion that can be drawn from the evidence submitted by
Plaintiff is that the wage was set out of concern for the respective
contents of the job; not based on gender. Accordingly, the Title VII wage
claim must be `dismissed.
2. Hosfile Work Environment
Plaintiff next contends that she was subjected to a hosfile work
environment. As the Second Circuit has explained,
In order to prevail on a hosfile work environment
claim under Title VII, a plaintiff must show that
the harassment was sufficiently severe or
pervasive to alter the conditions of the victim's
employment and create an abusive working
environment. . . . This test has objective and
subjective elements: the misconduct must be severe
or pervasive enough to create an objectively
hosfile or abusive work environment, and the
victim must also subjectively perceive that
environment to be abusive. Among the factors to
consider when determining whether an environment
is sufficiently hosfile are the frequency of the
discriminatory conduct; 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. In determining whether a hosfile
environment exists, we must look at the
totality of the circumstances. As a general rule,
incidents must be more than episodic; they must be
sufficiently continuous and concerted in order to
be deemed pervasive. While the standard for
establishing a hosfile work environment is high,
we have repeatedly cautioned against setting the
bar too high, noting that while a mild, isolated
incident does not make a work environment hosfile,
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. The environment need not be
unendurable or intolerable. Nor must the victim's
psychological well-being be damaged. In
short, the fact that the law requires harassment
to be severe or pervasive before it can be
actionable does not mean that employers are free
from liability in all but the most egregious
Terry v. Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003)
(internal citations, quotations and alterations omitted).
In support of her hosfile work environment claim, Plaintiff contends
that LaDuc constantly commented on her dress, saying things like "maybe
tomorrow you should wear your dress a little bit shorter," "why can't we
see your legs today," or "why don't you wear something low cut." Pl.'s
Dep. at 99. LaDuc also is alleged to have commented on the sizes and
weights of the D/COs on several occasions and to have commented that the
young dispatchers were "cute bitches" and older dispatchers were "ugly
bitches." Id. at 104. Although Plaintiff does not recall the
exact frequency with which such comments were made, there is evidence in
the record from which a fair-minded trier of fact could
reasonably conclude that the comments were pervasive. Plaintiff states
that, although the comments did not initially offend her, "it kept
happening and I can't tell you how many times he had commented before I
felt that way." Id. at 24. In her affidavit, Plaintiff contends
that she and the other D/COs were subjected to "malicious comments about
[her] appearance; [and] condescending remarks about [her] and [her]
office" on a daily basis. PI. Aff. at ¶ 36.
The references to wearing shorter dresses, lower cut attire, and
"bitches" clearly can be considered to be gender-based. The
evidence suggests that, although Defendants' actions were not physically
threatening, they can be considered offensive and humiliating. The issue
here is not so much the "quality" of the claimed offensive conduct, but
the quantity of it. If true, a reasonable person could find that such
comments made on a nearly daily basis are offensive and could
unreasonably interfere with Plaintiff's work performance. Thus, there is
sufficient evidence to satisfy the objective test.
It also is clear that the subjective test is satisfied. Although
Plaintiff was not offended initially, there became a point in time when
her feelings changed and she began to feel that the comments were
malicious. Pl. Dep at p. 24. This is supported by Plaintiff's complaints
to the Sheriff. Jock Dep. at pp. 190-92. Thus, there is sufficient
evidence upon which a fair-minded trier of fact could reasonably
conclude that Plaintiff was subjected to a hosfile work environment.
LaDuc can be held personally liable under N.Y. Exec. Law § 296(6),
which makes it an unlawful act to "aid, abet, incite, compel, or coerce
the doing of any of the acts forbidden under this article." N.Y. Exec.
Law § 296(6). Under this section of the HRL, "a defendant who
actually participates in the conduct giving rise to a discrimination
claim may be held personally liable." Tomka, 63 F.3d at 1317.
Because there is sufficient evidence upon which a fair-minded
trier of fact could reasonably conclude that LaDuc actually participated
in the conduct giving rise to a hosfile work environment, under New York
law, he is subject to personal liability.
Plaintiff also contends that the various comments and actions of Rumble
contributed to her hosfile work environment and that he should be held
personally liable therefor. Rumble is alleged to have called one D/CO a
"fat bitch," called another "Nurse Goodbody," made comments about the
D/COs' weights, and accused Plaintiff of having an affair with Jock.
Pl.'s Dep. at 104-105; Pl.'s Ex. 109 at p. 89. The Court need not decide
whether Rumble's alleged comments, taken alone, are sufficient to create
a hosfile work environment.*fn17 This is because the Court already found
that there are genuine issues of material fact concerning whether
Plaintiff was subjected to a hosfile work environment and Rumble is sued
pursuant to § 296(6) for aiding and abetting the alleged
discriminatory conduct. A fair-minded trier of fact could find
that Rumble participated in the creation of a hosfile work environment by
making the above-referenced comments. Accordingly, Rumble's
motion for summary judgment on the HRL claim is denied.
Roberts' alleged comments are even less offensive and apparently less
pervasive than those of Rumble. Nonetheless, Roberts is alleged to have
referred to Plaintiff's office as the "Barbie house" on a daily basis and
to have commented that Jock was Plaintiff's "boy toy." A trier of fact
could conclude that these comments were part of the overall conduct
contributing to a hosfile work environment. Accordingly, Roberts may be
subject to liability under § 296(6).
d. Doney, Farney and Hurlburt*fn18
Plaintiff also seeks to hold Doney and Hurlburt, members of the County
legislature, liable under § 296(6). Plaintiff has failed to point to
any evidence from which it may reasonably be concluded that Doney or
Hurlbut aided, abetted or otherwise participated in the creation of a
hosfile work environment. Absent any such evidence, the HRL claims
against Doney and Hurlburt must be dismsised.
Plaintiff seeks to hold Jock liable under N.Y. Exec. Law § 296(1)
on the theory that Jock and the County were her "joint employers." The
undisputed evidence in the record is that Plaintiff was an employee of
the County. Jock SMF at ¶¶ 4-5. Plaintiff is part of the civil service
system. Id. at ¶ 8. In fact, Plaintiff specifically
admitted that "Plaintiff was employed at all times referenced by Lewis
County, and not by Sheriff Jock." Id. at ¶ 5. Although Jock
necessarily had some authority over Plaintiff as her supervisor, he was
not her employer. Plaintiff will not be entitled to argue in her
memorandum of law against those facts that she admitted in her statement
of material facts. Plaintiff also fails to demonstrate that Jock
participated in the creation of a hosfile work environment. Having failed
to demonstrate any basis for imposing liability against Jock under the
HRL, that claim is dismissed.
f. Individual Liability Under Title VII
It is well-settled that none of the individual Defendants may
be held personally liable under Title VII. See Clarke v. Flushing
Manor Care Center, 2003 WL 1338663, at *2 (S.D.N.Y. 2003) (and cases
cited therein). Accordingly, any such claims are dismissed.
g. Lewis County
The remaining question is whether Lewis County may be held liable for
any hosfile work environment. The County contends that the Sheriff's
Department is a separate legal entity from the County and the County may
not be held accountable for the Sheriff Department's actions absent
legislation to the contrary. The Court rejects this argument for several
reasons. First, New York State Constitution art. XIII § 13(a) was
amended in 1989 to delete the provision providing that a "county shall
never be made responsible for the acts of the sheriff." Second, the
Second Circuit has repeatedly held counties to be held accountable for
the actions of its sheriff that violate federal law. See, e.g.,
Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001) (noting that the
county is responsible for the sheriff department's illegal strip-search
policy), cert. denied, 537 U.S. 1083 (2002); Jeffes
v. Barnes, 208 F.3d 49 (2d Cir. 2000) (holding that a sheriff is a
final policymaker of the county). Third, the sexual harassment is not
purported to have been caused by the Sheriff himself, but by corrections
officers employed by the County. Fourth, it is doubtful that state law
can exempt Plaintiff's employer (the County) from liability imposed
pursuant to a federal statute. See U.S. Const. art. VI, cl. 2.
Because the sexual harassment is claimed to have been perpetrated by
Plaintiff's supervisor (LaDuc) and there is evidence supporting a finding
that LaDuc was, in fact, Plaintiff's supervisor, the County is presumed
to be liable therefor. Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 765 (1998). An employer may escape liability by pleading
and proving, as an affirmative defense, that (1) the employer exercised
reasonable care to prevent and promptly correct any sexual harassment by
such a supervisor, and (2) the employee unreasonably failed to avail
herself of any corrective or preventative provided by the employer or to
avoid harm otherwise. Id. The County has made no such showing
here. Thus, if it is demonstrated that
LaDuc was, in fact, Plaintiffs' supervisor, the County is
presumptively liable for any sexual harassment.
d. RETALIATION CLAIMS
Plaintiff also has asserted retaliation claims pursuant to Title VII,
the EPA and 42 U.S.C. § 1983. To establish a prima facie case of
retaliation, Plaintiff must demonstrate: (1)that she engaged in protected
activity/protected speech known to Defendants; (2) that she suffered an
adverse employment action; and (3) that there is a causal connection
between the protected activity and the adverse employment action.
See Mandell v. County of Suffolk, 316 F.3d 368, 382 (2d Cir.
2003) (First Amendment); Treglia v. Town of Manlius,
313 F.3d 713, 719 (2d Cir. 2002) (Title VII). What constitutes protected
activity differs under each of the statutes invoked by Plaintiff. Protected
activity under Title VII is rather broad, while protected activity under
the EPA only includes "filing formal complaints, instituting a
proceeding, or testifying, but does not encompass complaints made to a
supervisor." Lambert, 10 F.3d at 55; see also Deravin v.
Kerik, 335 F.3d 195, 204 (2d Cir. 2003). To constitute protected
activity under the First Amendment, the speech must be of public concern.
See Mandell, 316 F.3d at 383 ("As a general rule, speech on
`any matter of political, social, or other concern to the community' is
protected by the First Amendment.") (quoting Connick v. Myers,
461 U.S. 138, 146 (1983)).
1. Protected Activity
Here, Defendants have not argued that Plaintiff did not engage in
protected activity. In any event, there is evidence that Plaintiff
engaged in protected activity known to Defendants, including filing
complaints with the New York State Division of Human Rights in March and
July of 2001. These complaints could constitute protected activity under
both Title VII and the EPA. Plaintiffs' other activities, however, such
as her claimed public advocacy during 2000-2001 for
pay equality and complaints to her supervisor do not constitute
protected activity under the EPA. These were not formal complaints or
proceedings as required under the EPA. Lambert, 10 F.3d at 55.
These activities may, however, constitute protected activity under Title
VII and/or the First Amendment. Eldred v. Consolidated Freightways
Corp. of Delaware, 898 F. Supp. 928, 940 (D. Mass. 1995) ("Opposing
the pay disparity, first with the terminal manager . . . and then
under the Equal Pay Act, is a protected activity within the meaning of
Title VII.). Plaintiff's complaints to Jock about her pay as dispatch
supervisor are not protected speech under the First Amendment. This is
because her complaints in this regard were related solely to her own
personnel issues (whether she was entitled to a supervisor's rate of
pay), rather than matters of public concern. Ezekwo v. NYC Health
and HOSPS. Corp., 940 F.2d 775, 780-81 (2d Cir. 1991).
2. Adverse Employment Action
The County argues that Plaintiff did not suffer any adverse employment
actions. As the Second Circuit has stated
A plaintiff sustains an adverse employment action
if he or she endures a materially adverse change
in the terms and conditions of employment. To be
materially adverse a change in working conditions
must be more disruptive than a mere inconvenience
or an alteration of job responsibilities. 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.
Galabya v. New York City Bd. of Educ., 202 F.3d 636
(2d Cir. 1998) (internal quotation, citations and alterations omitted).
Looking at the facts in the light most favorable to Plaintiff, a jury
could reasonably conclude that she suffered an adverse employment action.
In 1999, Jock provisionally appointed Plaintiff to the position of
dispatch supervisor. At that time, Plaintiff was viewed as a supervisor
and took on supervisory functions. Pl.'s Aff. at ¶ 14. According
to Plaintiff, as dispatch supervisor, she discontinued performing D/CO
functions and, instead, took on other new, important duties.
Id. at ¶ 15. Plaintiff no longer worked in the control
room, but was transferred into an office. Id. She was no longer
required to wear a uniform. Her compensation, however, did not change. In
May 2001, the County approved the creation of the dispatch supervisor
position. Although Plaintiff had been performing that function since
1999, she was not formally given the position and, thus, was ineligible
for any increased wages or benefits. In November 2001, the County
abolished the position of dispatch supervisor. Jock then took away
Plaintiff's dispatch supervisor duties, she was returned to the control
room, and she was required to resume performing as a D/CO. Id.
at ¶ 45. A fair-minded trier of fact could conclude that the
change in title and duties from performing supervisory functions as a
dispatch supervisor to performing D/CO functions and being transferred
back into the control room could constitute a materially adverse change
in employment. See, e.g., Signer v. Tuffey, 66 Fed. Appx. 232,
235-36 (2d Cir. 2003); De La Cruz v. New York City Human Resources
Administration Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996);
Rodriguez v. Board of Educ., 620 F.2d 362, 366 (2d Cir. 1980);
compare Galabya, 202 F.3d at 641-42 (noting that evidence that
a transfer was to an assignment that was materially less prestigious or
materially less conducive to career advancement could constitute a
finding of an adverse employment action).
A trier of fact also could conclude that the non-renewal of the
ASA in May 2001 was an adverse employment action. It must be recalled
that, at all relevant times, Plaintiff was a full-time employee
of the LCSD. Upon the retirement of the chief civil deputy, Jock
requested that Plaintiff fulfill some of the chief civil deputy's duties.
Accordingly, Plaintiff worked under two hats one has a dispatch
supervisor and one as secretary to the chief. Plaintiff received
compensation for her services as secretary to the sheriff. The
union filed a grievance claiming that it was improper for the County to
pay Plaintiff an additional $10,000 above her negotiated salary schedule
without negotiating the increase with the union. Accordingly, Plaintiff
and the County entered into an ASA for a set period of time. It is
evident that the purpose of the ASA was to circumvent the salary
negotiation requirements under the CBA; not to split Plaintiff's duties
into those as an employee (dispatch supervisor duties) and those as an
independent contractor (secretary to the sheriff duties). Thus, the
County's claim that it was not Plaintiff's employer for purposes of the
non-renewal of the administrative services agreement must be
The non-renewal of the ASA had the effect of eliminating
Plaintiff's secretary to the sheriff duties and eliminating the
additional compensation she received. Understandably, the ASA had a
specified term and was not subject to renewal. However, as noted, the
entire ASA was a rouse to circumvent certain requirements imposed by the
CBA. If Plaintiff had continued to work as secretary to the sheriff and
not under an ASA, the elimination of her secretary to the sheriff duties
and the concomitant pay reduction certainly would constitute an adverse
employment action. Here, the County should not be able to escape the same
conclusion simply because it engaged in some fanciful paperwork to
satisfy the union while having Plaintiff perform the same work.
Defendants are free to argue at trial that this was not, in fact, an
adverse employment action. The Court is simply holding that a
fair-minded trier of fact could find that it was.
Plaintiff also claims that the denial of sick leave bank time
constituted an adverse employment action. Plaintiff participated in the
County's voluntary sick leave bank. Under that program, an employee could
donate certain amounts of sick leave to the sick leave bank. In the
event of a prolonged illness, an employee who had exhausted
accumulated leave time "may be entitled to draw up to a maximum of 60
days or 15% of the Sick Leave Bank . . . in a given year." Pl.'s Ex.
62. The sick leave bank, although voluntary, provides a significant
benefit for those who choose to participate in it. Moreover, to
participate, an employee has to give up certain accrued sick leave time
(3 days upon enrollment and 1 day each year thereafter). Under these
circumstances, a fair-minded trier of fact could conclude that
the refusal to allow an employee to reap the benefits of this program
constitutes a materially adverse employment action.
3. Causal Connection
The County does not argue that there is no causal connection between
the alleged protected activity and the alleged adverse employment
actions. In any event, the temporal proximity between Plaintiff's March
and June 2001 complaints to the EEOC and her continual complaints
concerning pay and the May 2001 non-renewal of the Administrative
Services Agreement, the August 2001 denial of Plaintiff's application to
use sick bank leave time, the November 2001 abolishment of the dispatch
supervisor position, and the November 2001 removal of Plaintiff's
dispatch supervisor responsibilities is sufficient to support an
inference of causation. See Treglia, 313 F.3d at 720-21.
For the foregoing reasons, Plaintiff has established a prima facie case
of retaliation. Because Defendants have not proffered any legitimate,
non-retaliatory reasons for any alleged adverse employment actions,
the Court need not wend its way through the remaining steps of the
McDonnell-Douglas burden shifting methodology. Suffice it to
say that there are sufficient triable issues of fact warranting a denial
of the County's motion for summary judgment with respect to the
4. Liability of Jock on Plaintiff's Claim Pursuant to
42 U.S.C. § 1983
In his statement of material facts, Jock states that he "did not
knowingly retaliate against Plaintiff, and according to Plaintiff, the
Sheriff's `relatiation' against her consisted solely of not `backing' her
sufficiently." Jock SMF at ¶ 24. Plaintiff admitted to this
statement. Based upon these admitted facts, it must be concluded as a
matter of law that Jock did not engage in any retaliatory conduct.
Plaintiff repeatedly admits that Jock was supportive of her efforts to
obtain pay for work performed as secretary to the sheriff, supported the
renewal of the administrative services agreement, supported Plaintiff's
efforts to be promoted to the dispatch supervisor position, and sought a
raise for Plaintiff as dispatch supervisor. Jock SMF at ¶¶ 14, 20, 22.
Moreover, although it was Jock who transferred Plaintiff from the
dispatch supervisor position to the D/CO position, he did so only because
he was forced to do so when the County eliminated the position.
See Jock SMF at ¶ 17 and Pl.'s response thereto. Thus,
there is no evidence of any retaliatory conduct by Jock.
e. Liability of Doney, Farney and Hurlburt
Doney and Hurlburt move to dismiss on the grounds that: (1) they were
not acting under color of state law; and (2) they are entitled to
legislative immunity. Both of these claims must be rejected.
Doney and Hurlburt contend that they are being sued as private
individuals and, thus, they were not acting under color of state law. An
individual acts under color of state law when exercising power
"`possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.'" Polk County
v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States
v. Classic, 313 U.S. 299, 326 (1941)); see also West v.
Atkins, 487 U.S. 42, 49 (1988). Here, Doney and
Hurlburt's actions were taken by virtue of their positions with the
County legislature. As such, their actions were under color of state law.
With respect to the issue of legislative immunity,
the Second Circuit has stated that
Legislators are entitled to absolute immunity from
civil liability for their legislative activities.
This Circuit has previously held that absolute
legislative immunity for Section 1983 actions
extends to local legislators. . . .
The test for determining whether an act is
legislative turns on the nature of the act, rather
than on the motive or intent of the official
performing it. Under this functional test,
immunity depends on the nature of the act itself,
not the identity of the actor performing it.
The first step in our inquiry is whether the Board
members' actions were legislative in function. In
order for legislative immunity to attach, the act
in question must be taken in the sphere of
legitimate legislative activity. Discretionary
personnel decisions, even if undertaken by public
officials who otherwise are entitled to immunity,
do not give rise to immunity because such
decisionmaking is no different in substance from
that which is enjoyed by other actors. In so
holding, we do not mean to suggest that decisions
regarding the elimination of a class of jobs for
budgetary or policy reasons would not be
legislative in nature simply because they relate
to employment. To reiterate, it is the nature of
the act that we examine to determine whether
legislative immunity applies.
Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206
210-11 (2d Cir. 2003).
Here, the decisions concerning the creation and subsequent abolition of
the dispatch supervisor position were legislative functions. The record
reveals that, although there were comments regarding Plaintiff's
connection with these positions, the overall question was whether to
authorize such a position. This falls within the legislative function.
Harhay, 323 F.3d at 211. Dorney and Hurlburt's acts concerning
whether to permit Jock to provisionally fill the dispatch supervisor
position, however, cannot be said to be legislative in function.
Id. at 210. Whether to permit Jock to fill the position was a
discretionary personnel decision outside the scope of legislative acts.
The same holds true with respect to the decision not to renew Plaintiff's
Accordingly, Doney and Hurlburt may be held liable to the extent it
is found that their actions in refusing to permit Jock to provisionally
appoint her to the dispatch supervisor position and/or in refusing to
renew the ASA were in retaliation for Plaintiff's protected activity.
f. Defamation Claim
Defendants Doney, Rumble and Roberts move to dismiss the defamation
claim on the ground that it is time-barred. These Defendants have
submitted evidence that the alleged defamatory statements were made as
early as June 2000. Rumble Ex. H. In her opposition papers, Plaintiff
does not oppose the motion to dismiss the defamation claim.
Significantly, Plaintiff has not pointed to any evidence from which it
reasonably may be inferred: (1) that any of the alleged defamatory
statements were made within the applicable statute of limitations;*fn19
or, more significantly, (2) that any of the Defendants actually made any
defamatory statements. While such evidence may exist buried somewhere in
the voluminous submissions to the Court, the burden of identifying such
evidence for the Court in opposition to Defendants' motions lays with
Plaintiff. The Local Rules require the litigant, not the Court, to sift
through the record and bring to the Court's attention the pertinent
information. See Amnesty America v. Waugh, 288 F.3d 467, 470
(2d Cir. 2002)("We agree with those circuits that have held that
Fed.R.Civ.P. 56 does not impose an obligation on a district court to perform
an independent review of the record to find proof of a factual
dispute.")(citations omitted); Monahan v. New York City Dep't
Corrections, 214 F.3d 275, 291 (2d Cir. 2000) (Noting
that the local rules are "designed to place the responsibility on the
parties to clarify the elements of the substantive law which remain at
issue because they turn on contested facts. . . . While the trial
court has discretion to conduct an assiduous review of the record in an
effort to weigh the propriety of granting a summary judgment motion, it
is not required to consider what the parties fail to point out.")
(internal quotations and citations omitted). Because Plaintiff has failed
to identify any evidence of defamatory statements made by these
Defendants or any evidence that any such statements were made within the
applicable statute of limitations, the defamation claims are dismissed.
g. Plaintiff's Appeal of the Magistrate Judge's Order Denying
Leave to File a Supplemental Second Amended Complaint
Plaintiff also appeals from the Magistrate Judge's January 30, 2004
Order denying her leave to file a supplemental second amended complaint
asserting additional allegations of discrimination concerning an alleged
denial of a promotional opportunity and to add an additional Defendant,
the Lewis County Civil Service Commission. The Magistrate Judge denied
the motion for leave to amend on the grounds that summary judgment
motions were then pending, the case is slated for trial in June, the
addition of new claims would requires additional discovery, and
Defendants would be prejudiced by the amendment.
For the following reasons, the Court affirms the decision of the
Magistrate Judge. First, discovery in this action has been complete for
quite some time now. Second, Plaintiff has already filed three different
complaints (an original and two amendments). Third, the facts supporting
the new claim were known by early September 4, 2003 at the latest.*fn20
despite the fact that discovery was completed and the dispositive
motion filing deadline was quickly approaching, Plaintiff waited until
late November to raise the issue of another amended Complaint with
Defendants and waited until mid-December 2003 to raise the issue
with the Magistrate Judge. Plaintiff did not file a motion for leave to
file an amended Complaint until December 29, 2003. Given the length of
time this case had already been pending and the deadlines the parties
were facing, the Court finds that Plaintiff waited too long in seeking to
amend her Complaint.
Fourth, although the facts giving rise to the new claims arose after
the close of discovery, permitting new claims would require discovery to
be reopened and will likely cause a significant delay in this litigation
which is scheduled for trial in June. Although Plaintiff contends that no
additional discovery would be required, the Court finds it difficult to
agree with that proposition. Plaintiff is seeking to add an entirely new
basis for liability that the County and the County Civil Service
Commission should be liable because they refused to allow her to sit for
a particular promotional exam on account of her gender. The Court is
cognizant that the operative pleading is rife with allegations of
gender-based discrimination, but Plaintiff now references a discrete
instance of alleged discrimination that could not have been addressed
during the discovery period because it is alleged to have occurred after
the close of discovery. Certainly, Defendants would be entitled to
discovery on these new events and the circumstances surrounding these
events. This may include obtaining documents from the Civil Service
Commission, deposing members of the Commission and re-deposing
Plaintiff and/or Jock.
Moreover, Plaintiff is seeking to add a new party the Lewis
County Civil Service Commission. There are questions concerning whether
the proposed new party, the Lewis County Civil Service Commission, is an
arm of the County or a separate legal entity. At first blush, it appears
that the Commission may not be an arm of the County. See Slavin v.
McGuire, 205 N.Y. 84, 87 (1912) ("Although the members of the
municipal civil service commission are local officers, they act, not for
the municipality, but for the public in carrying out the provisions of
the State Civil Service Law. They are not the servants of the
municipality."); Allen v. City of New York, 160 A.D. 534 (2d
Dept. 1914) (same). This issue alone is certain to cause legal battles
that must be resolved by the Court. This is likely to lead to further
delay. Moreover, if the Commission is found to be a separate legal
entity, it would be entitled to time to retain counsel and to obtain
discovery concerning the allegations against it, notwithstanding any
discovery the other Defendants may have undertaken. Additionally, if the
Lewis County Civil Service Commission is separate from the County, it
would also have to be afforded an opportunity to raise such issues as
whether any HRL or Title VII claims against it were properly exhausted.
This would present further legal issues that must be resolved by the
Court before this matter could proceed to trial. Again, this is likely to
cause significant delay.
Fifth, allowing the addition of a new Defendant and new claims would
require additional delay to permit Defendants to file responsive
pleadings and/or motions to dismiss and the opportunity to obtain summary
judgment on the new claims.
For the foregoing reasons, the Court finds that the Magistrate Judge's
Order denying Plaintiff's motion for leave to file a Supplemental, Second
Amended Complaint is not clearly erroneous. 28 U.S.C. § 636(b)(1)(A).
For the foregoing reasons, the Court AFFIRMS the January 30, 2004 Order
of the Magistrate Judge. Defendants' motions for summary judgment are
GRANTED IN PART AND DENIED IN PART as follows:
1. The motion to exclude Plaintiffs expert is
GRANTED IN PART. The expert will be permitted
to testify to those limited issues identified
2. The EPA claims are DISMISSED with respect to
the D/CO and CO positions. The County and
Plaintiff are granted leave to file
supplemental briefs (as detailed
supra) with respect to the EPA claims
concerning the secretary to the sheriff and
dispatch supervisor positions;
3. The discriminatory wage setting claims under
Title VII and the HRL are DISMISSED IN THEIR
4. The Title VII claims as to the individual
defendants are DISMISSED IN THEIR ENTIRERTY;
5. The motion to dismiss the Title VII hosfile
work environment claim against the County is
6. The motions to dismiss any New York Human
Rights Law claims are GRANTED IN THEIR
ENTIRETY as to Defendants Jock, Doney, Farney
7. The motions to dismiss the New York Human
Rights Law claims as to Defendants Lewis
County, John LaDuc, Devere Rumble and Dale
Roberts are DENIED;