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June 15, 2005.

THE COUNTY OF ROCKLAND, by C. SCOTT VANDERHOEF, County Executive for the County of Rockland, and JACQUELINE STORMES, Individually and as Deputy Director of the Department of Probation, Defendants.

The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiff Frances E. Kearney commenced this action against defendants the County of Rockland (the "County") and Jacqueline Stormes, the County Deputy Director of the Department of Probation, in her individual and official capacities, (collectively, the "defendants"). Plaintiff alleges that defendants discriminated against her on the basis of her age in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 621 et seq., and the New York State Human Rights Law (the "NYSHRL"), N.Y. EXEC. LAW §§ 290 et seq. Plaintiff also asserts claims under 42 U.S.C. § 1983, for discrimination in violation of the Equal Protection Clause and for retaliation for the exercise of her First Amendment rights, and a state law claim for intentional infliction of emotional distress. Defendants now move for summary judgment pursuant to FED. R. CIV. P. 56 to dismiss the Complaint.*fn1 For the reasons stated hereinafter, defendants' motion for summary judgment is granted.


  I. Brief Factual Background*fn2

  Plaintiff was hired on January 1, 1996 and employed by the County as a probation officer with the County Department of Probation (the "Probation Department" or "Department") at all times relevant to this action. On two relevant occasions, once in November of 2002 and again in April of 2003, the County promoted a probation officer within the Probation Department to the position of Senior Probation Officer. (Complt. ¶¶ 8-9.) Plaintiff was not selected for promotion on either occasion. (Id.)

  Plaintiff claims that Juan Del Pilar, who was promoted in November of 2002, was "an individual younger than plaintiff and with less experience." (Id. ¶ 8.) However, defendants have offered evidence, which plaintiff has not disputed, establishing that plaintiff is only four years older than Del Pilar and that he was hired before plaintiff, in August of 1987.*fn3 (Id.) Plaintiff also claims that she was "better qualified" and had greater seniority than other individuals in the Probation Department who were promoted on various occasions, namely Mary Burke, Laureen Connelly, James Gould and Margaret Mackey. (Complt. ¶ 8; Pl. Mem. Opp. Summ. J. at 1.)

  Prior to early 2003, plaintiff was assigned to work in the Juvenile Unit of the Probation Department. (Complt. ¶ 9.) In 2002, the Probation Department began experiencing personnel shortages due to the unexpected retirement of several Probation Officers. (Defs. Rule 56.1 Stmt. ¶¶ 63-73.)*fn4 During this time, all of the officers within the Probation Department were required to help complete the work for all of the units within the Department. (Id. ¶¶ 73-78.) As a result, in approximately February of 2003, plaintiff was reassigned to work in the Criminal Unit of the Probation Department. (Complt. ¶ 9.) Plaintiff claims that this action was taken to discriminate against her on the basis of her age or to retaliate against her for complaining of discrimination.*fn5 (Id.) Plaintiff was not the only Probation Officer to be reassigned to work in the Criminal Unit. (Defs. Rule 56.1 Stmt. ¶ 104.)

  Plaintiff also contends that County officials took the following actions to discriminate or retaliate against her and that these actions were taken "willfully and maliciously to cause emotional distress": (1) Stormes pushed plaintiff during an altercation; (2) Joseph Foreman, plaintiff's supervisor, yelled at plaintiff in a hostile manner in front of co-workers and closed a paper manila file folder "in close proximity" to her face; and (3) she was denied time off. The Complaint does not indicate when these events allegedly occurred. (Complt. ¶ 10.)

  Plaintiff provides the following allegation to support her claims against Stormes and the County under 42 U.S.C. § 1983:
The failures to Promote and successive retaliatory conduct demonstrates [sic] a severe and pervasive pattern and practice of discriminatory conduct to deny Plaintiff a promotion and compel her wrongful termination. A sheet has been distributed relative to those who would be `for' or `against' Ms. Karen Damiani's appointment. From a brief review of this signature list, there appears to be a possible pattern that the individuals `for' appointment received better job opportunities than those who were `against', which included Plaintiff. Consequently, the motivating factor, the failure to provide Plaintiff equal protection and/or equal opportunity is motivated by her age and/or in retaliation for having complained thereof.
(Id. ¶ 12.)

  The Complaint makes no reference to any charges of discrimination filed by plaintiff with the Equal Employment Opportunities Commission (the "EEOC") or the County Office of Employee Rights and Equity Compliance (the "OER"). Plaintiff also neglected to plead compliance with the Notice of Claim provisions of N.Y. COUNTY LAW § 52. Defendants, however, provided copies of plaintiff's charges to the EEOC and the OER and the Notice of Claim served upon the County in connection with this action. These documents, along with plaintiff's deposition testimony, provide some indication of when the events complained of by plaintiff are alleged to have occurred.

  On May 18, 2000, plaintiff filed a "Complaint of Discrimination, Harassment or Retaliation" with the OER (the "2000 OER Complaint"). (6/11/04 Vasquez Aff., Ex. B.) In the 2000 OER Complaint, plaintiff alleged that she was discriminated against by Stormes and other County officials between the dates of July 23, 1999 and March 9, 2000. (Id.) Plaintiff did not specify what type of discrimination occurred. She stated only that Stormes "pushed" her and that she was treated badly at a Civil Service Employees Association ("CSEA") grievance meeting. (Id.) Plaintiff later discontinued the 2000 OER Complaint against Stormes and two others County officials. (Id., Ex. C.) On February 8, 2001, the OER dismissed plaintiff's 2000 OER Complaint against the remaining respondents. (Id., Ex. D.)

  On February 28, 2003, plaintiff filed an "CSEA Grievance Form," challenging Stormes's decision to transfer her to the Criminal Unit. (6/10/04 Stormes Aff., Ex. B.) The CSEA Grievance Form indicates that the decision to transfer plaintiff was made on January 31, 2003 and that the transfer became effective on February 4, 2003. According to defendants, on February 5, 2003, an OER complaint form was forwarded to plaintiff at her request. (6/11/04 Vasquez Aff. ¶ 21.) However, plaintiff never returned the completed complaint form to the OER or told the OER why she had requested the form. (Id.) In a letter dated April 25, 2003, plaintiff filed another complaint with the OER (the "2003 OER Complaint"). (Id., Ex. G.) In the 2003 OER Complaint, plaintiff alleged that on April 25, 2003, Foreman shouted at her in a hostile manner. (Id.) She did not allege that this act was committed for discriminatory reasons. (Id.) The OER subsequently dismissed the 2003 OER Complaint concluding that no human rights violations had occurred. (Id., Ex. H.)

  On July 7, 2003, plaintiff filed a charge with the EEOC (the "EEOC Charge") naming the County as respondent. (6/11/04 Swift Aff., Ex. B.) In the EEOC Charge, plaintiff alleged that she was denied a promotion as a result of age discrimination and that Del Pilar, a younger, less experienced candidate, was promoted instead. Plaintiff also alleged that Stormes transferred her to the Criminal Unit for discriminatory or retaliatory reasons. Plaintiff provided the Court with a copy of an amendment to the EEOC Charge filed on November 11, 2003, wherein plaintiff alleges that Burke, Connelly, Gould and Mackey were promoted over plaintiff for unspecified discriminatory reasons.*fn6 (7/12/04 Ranni Aff., Ex. 13.)

  In July 2003, plaintiff served the County with a Notice of Claim dated July 9, 2003. (6/11/04 Swift Aff., Ex. C.) The Notice of Claim provides:
The claim is for compensation to the Claimant for discrimination and retaliation through the actions of the [County] . . . [its] agents, servants or employees, the denial of promotion [sic], initiation of false claims, abuse of process including improper disparate discipline, lack of good faith, unpublished complaint procedure [sic] and other conduct.
(Id.) At some point during the summer of 2003, plaintiff informed the County that she allegedly suffers from a learning disability known as attention deficit disorder. Plaintiff also requested that the County provide her with certain accommodations and a job coach under the Americans with Disabilities Act (the "ADA").*fn7 (5/3/05 Ranni Aff., Ex. 1.) In connection with plaintiff's request, she submitted to a psychiatric evaluation performed by Dr. Alan J. Tuckman.*fn8 (Id.) Dr. Tuckman found no evidence that plaintiff suffers from a learning disability that would negatively impair her job performance or require any accommodations at work. (Id.) Consequently, the County denied plaintiff's accommodation request and refused to place her on involuntary leave. (Id.) Plaintiff subsequently filed an EEOC charge, unrelated to the present action, alleging that the County had discriminated against her in violation of the ADA. (Id.)

  II. Procedural History

  Defendants previously moved to dismiss plaintiff's Complaint pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction and, alternatively, pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief may be granted. In an Opinion and Order dated September 22, 2004 (the "9/22/04 Opinion") this Court denied defendants' Rule 12(b)(1) motion*fn9 and granted in part defendants' Rule 12(b)(6) motion. However, at that time we declined to consider all of the grounds for dismissal raised by defendants in their Rule 12(b)(6) motion and gave notice that we would treat it as a motion for summary judgment pursuant to Rule 56.*fn10 Accordingly, we will now address those remaining issues herein.*fn11


  I. Standard of Review on Motion for ...

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