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Evans v. Waldo

September 18, 2006

LAQUEL EVANS, PLAINTIFF,
v.
MICHAEL WALDO, INDIVIDUALLY AND IN HIS CAPACITY AS EMPLOYEE, AGENT AND/OR SERVANT OF THE CITY OF NEW YORK, AND/OR NEW YORK CITY POLICE DEPARTMENT, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM & ORDER

Plaintiff, Laquel Evans, commenced this sexual harassment action against defendants Michael Waldo, the City of New York, and the New York City Police Department alleging violations of 42 U.S.C § 1983, the Fourteenth Amendment to the U.S. Constitution and analogous state and local laws.*fn1 Defendant Waldo joined issue and alleged various counterclaims including abuse of process, defamation, and also seeks to impose Rule 11 sanctions on plaintiff and plaintiff's counsel. Plaintiff now brings this motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) to dismiss defendant's counterclaims. For the following reasons, plaintiff's motion for judgment on the pleadings is granted and defendant's counterclaims are dismissed.

I. Background

Plaintiff, a School Safety Officer, employed by the New York City Police Department, alleged that between October 1999 and March 2002, plaintiff's supervisor, defendant Michael Waldo, sexually harassed her. Specifically, plaintiff alleged that defendant made offensive comments and referred to plaintiff in a derogatory manner.*fn2 Plaintiff also alleged that defendant gyrated up against a table while stating to plaintiff, "I could have you if I wanted to. It's a good thing the Church has changed me; it's the reason I haven't touched you yet." (Pl.'s Compl. ¶ 21.)

On April 24, 2002, plaintiff filed an internal complaint with the New York City Office of Equal Employment Opportunity ("OEEO"). (Pl.'s Decl. Ex. G; Pl.'s Compl. at ¶ 26.) Following an investigation, the OEEO found plaintiff's allegations substantiated and recommended that defendant be disciplined and attend a "Professional Conduct in the Workplace" seminar. (Pl.'s Decl. Ex. H.) Defendant even "voluntarily accept[ed] [the OEEO's] findings and the proposed disciplinary action," by signing an acknowledgment of the OEEO's findings. (Pl.'s Decl. Ex. I.) Accordingly, defendant was disciplined, forfeited five vacation days, and was required to attend the "Professional Conduct in the Workplace" seminar. (Pl.'s Decl. Ex. J.)

In February 2004, plaintiff filed the instant sexual harassment complaint against defendants Waldo, the City of New York, and the New York City Police Department. Defendant joined issue and asserted various counterclaims. Although plaintiff settled this action as to the City of New York and the New York City Police Department, defendant Waldo remains in this action after plaintiff refused Waldo's demand for cash payment to release his counterclaims. After the close of discovery, plaintiff filed the instant motion.

II. Discussion

The standard to be applied to a motion for judgment on the pleadings brought under Fed. R. Civ. P. 12(c) is the same as a motion to dismiss under Rule 12(b)(6), unless the Court chooses to consider materials outside the four corners of the pleadings. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816, 115 S.Ct. 73, 130 L.Ed. 2d 28 (1994). If the court chooses to consider materials outside the pleadings, the motion must be converted to one for summary judgment. See Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999). The four corners of the pleadings include "factual allegations in [plaintiff's] complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in [plaintiff's] possession or of which [plaintiff] had knowledge and relied on in bringing suit." See Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993). Here, the court's decision relies on the pleadings and documents incorporated in the pleadings by reference; thus, it is unnecessary to convert the instant motion into one for summary judgment.

A. Abuse of Process*fn3

For his first counterclaim, defendant alleges that plaintiff "commence[d] this action solely for the purpose of embarrassing and humiliating the Defendant," and "in deliberate attempt to smear his name and reputation and the [sic] recover financially in the hopes that the mere appearance of impropriety would induce a monetary settlement." Def.'s Answer at 5. To establish a counterclaim for abuse of process, defendant Waldo must satisfy three elements: 1) regularly issued process; 2) an intent to harm without excuse or justification; and 3) use of process in a perverted manner in order to obtain a collateral objective. Varela v. Investors Ins. Holding Corp., 185 A.D.2d 309, 310, 586 N.Y.S.2d 272 (2d Dep't 1992). In addition, "[i]n order to sustain a cause of action to recover damages for abuse of process, the process complained of 'must involve an injury to or an interference with one's person or property.'" Id. (quoting Siegel v. Smith, Panish & Shapiro, 136 A.D.2d 620, 621, 523 N.Y.S.2d 866 (2d Dep't 1988)).

Defendant does not allege sufficient facts to state an abuse of process claim. Defendant purports to argue that the plaintiff's filing of a complaint constitutes abuse of process. However, "the institution of a civil action by summons and complaint is not legally considered process capable of being abused." Curiano v. Suozzi, 63 N.Y.2d 113, 116, 469 N.E.2d 1324, 480 N.Y.S.2d 466 (1984). Moreover, defendant's conclusory allegations that plaintiff brought this suit "to coerce a settlement out of the City of New York even if it was at the expense of a good man's name," (Def.'s Br. at 6), is insufficient to raise an abuse of process claim. See Curiano, 63 N.Y.2d 113 at 117 (holding that a malicious motive alone does not give rise to a cause of action for abuse of process).

Plaintiff's complaint was not brought in bad faith. In fact, the OEEO investigated and substantiated plaintiff's complaint against defendant. Finally, defendant argues that plaintiff's collateral objective in bringing this action was to obtain "monetary compensation." (Def.'s Br. at 7.) Plaintiff's goal of monetary compensation is not a collateral objective, it is the central objective of the plaintiff's complaint and the rationale for compensatory damages permitted in a § 1983 action. Thus, defendant fails to state a counterclaim for abuse of process.

B. Defamation

As to his second counterclaim, defendant alleges he suffered "significant damage to his professional reputation resulting in significant pecuniary losses as well as losses in his promotion and alternate employment opportunities." Def.'s Answer at 6. To establish a claim for defamation, defendant Waldo must satisfy four elements: 1) an oral defamatory statement of fact; 2) regarding the plaintiff; 3) published to a third party by the defendant; and 4) injury to the plaintiff. Idema v. Wager, 120 F. Supp. 2d 361, 365 (S.D.N.Y. 2000). In addition, he must "set forth the exact slanderous words allegedly spoken to [the] parties." Lewittes v. Blume, 18 A.D.3d 261, 795 N.Y.S.2d 13 (1st Dep't 2005). While a claim of defamation is governed by the liberal pleading requirements of Fed. R. Civ. P. 8(a), courts have upheld the sufficiency of a defamation claim when the claimant alleges "what the slander was, who said it, and approximately when it ...


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