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Cunningham v. Town of Ellicott

October 11, 2006


The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge Western District of New York

Hon. Hugh B. Scott

Consent Decision & Order

Before the Court is the defendants' motion for summary judgment (Docket No. 67).


Plaintiff, Tera Cunningham ("Cunningham"), is a former patrol officer for the Town of Ellicott. She brings this action claiming that her rights under Title VII of the 1964 Civil Rights Act (42 U.S.C. §2000 e, et seq.) were violated in that she was sexually harassed by Police Chief William Ohnmeiss ("Ohnmeiss") while she was employed with the Town. Named as defendants are Ohnmeiss, individually; as well as the Town of Ellicott, the Town of Ellicott Police Department, and Patrick Tyler, Ellicott Town Board Supervisor.

The plaintiff asserts that she was hired in April of 2001 by the Town of Ellicott as a part-time police officer after having previously served in that capacity for the Town of Westfield.

(Docket No. 17 at ¶ 9). In July of 2003, she was promoted to a full-time position on a one-year probationary basis. On March 5, 2004, Cunningham was advised in writing that she had "not successfully completed" her probationary period and that her employment was terminated. (Docket No. 69, Exhibit J).

Cunningham claims that beginning in 2002, she was subjected to unwelcomed sexual harassment by Ohnmeiss which resulted in a hostile work environment. According to Cunningham, after attending a Police Benevolent Association meeting in September of 2002, Ohnmeiss asked to see the plaintiff's underwear. The plaintiff states that when she refused this request, Ohnmess persisted for "nearly an hour" and ultimately dropped his pants in front of her (and two other individuals) revealing "gray boxer briefs and an erection." (Docket No. 17 at ¶¶ 12-13). Later, Ohnmeiss is alleged to have approached Cunningham while she was alone, and asked her to stick out her tongue. When she refused to do so, Ohnmeiss called her "a chicken" and purportedly referring to his male genital, told Cunningham that "little Bill" had just "moved." The plaintiff claims that Ohnmeiss then allegedly attempted to French kiss Cunningham, but she got up and moved away. (Docket No. 17 at ¶¶14-15). Ohnmeiss is also alleged to have asked Cunningham if she "shaved down there," presumingly referring to the plaintiff's pubic area. (Docket No. 17 at ¶ 16). Cunningham also alleges that Ohnmeiss "trapped" her in a bathroom and grabbed her breast while asking her if she would "do him" for a "full time job." (Docket No. 17 at ¶ 18).

The plaintiff alleges that in November of 2002, while she was out on patrol, Ohnmeiss asked her to meet him at an old drive-in on Route 380. At that time, Ohnmeiss is alleged to have told Cunningham that if the plaintiff ever told anyone about his ongoing behavior toward her, that he would "deny everything" and that he would "kill himself." Cunningham alleges that Ohnmeiss laid his hand on hers, but that she quickly pulled her hand away. Cunningham asserts that Ohnmeiss informed her that he would not know what to do if she became a member of the Union, because of the job protections afforded to Union members. (Docket No. 17 at ¶¶ 21-23).

Cunningham alleges that in June of 2003, about one month before being appointed to a full-time position, she was alone with Ohnmeiss in her patrol car. She contends that Ohnmeiss informed her that there would be a full-time position opening up and that she should be prepared to "do her part." (Docket No. 17 at ¶ 24). One week before Cunningham's appointment to the probationary full-time position was to be ratified, she asserts that Ohnmeiss directed her to meet him down in the boiler room of the police station. The plaintiff contends that at that time he "leaned into" her and asked her "are you ready to do your part?" (Docket No. 17 at ¶ 25).

Throughout this time period, Cunningham asserts that Ohnmeiss would frequently refer to his genitalia in front of her as "little Bill" or "turtle-turtle." She claims that when an attractive women would come into the police station, Ohnmeiss would state "go back in turtle- turtle." (Docket No. 17 at ¶ 26). The plaintiff alleges that during her employment with the Town of Ellicott Police Department, Ohnmeiss would make persistent unsolicited comments such as: comments about his sex life; sex with his wife; that he could masturbate eight times a day; about girls that he would "hit on" when he went out with the guys; how he tried to sexually seduce a waitress at a restaurant called "Pal Joeys"; about his daughter's sex life; about his sexual escapades as a young man in the military, particularly with "ten dollar prostitutes"; and how he wanted to do a "threesome" with his cousin. (Docket No. 17 at ¶ 27). Finally, the plaintiff alleges that Ohnmeiss would routinely ask her if she had sexual intercourse with her male co- workers. Cunningham asserts that all of these comments were unwelcome and affected her ability to work as a patrol women (Docket No. 17 at ¶ 27).

Cunningham asserts that after she rejected all of Ohnmeiss' sexual advances, she was subjected to "undue scrutiny" that eventually culminated in the recommendation of her termination by Ohnmeiss, which was ratified by the Town without further investigation. She claims that Ohnmeiss "cooperated" with a complaint filed by one of Cunningham's co-workers, Jim Curtis, alleging that she did not live in the Town of Ellicott as was required for the position.*fn1 (Docket No. 17 at ¶ 29). In September of 2003, Cunningham asserts that she complained to Ohnmeiss that Curtis was "stalking her" but that Ohnmeiss did nothing other than to tell her she "better not go around repeating" the allegation to anyone. (Docket No. 17 at ¶ 33). The plaintiff claims that her attorney contacted Ohnmeiss and informed him that Curtis' conduct was "potentially actionable." At the same time, according to Cunningham, she complained about Ohnmeiss' sexual harassment to Town Board member Brian Taylor. (Docket No. 17 at ¶ 33-34).

The plaintiff alleges that she was subjected to other undue scrutiny as well. She claims that on "numerous occasions" she was told that the length and style of her hair was too "distracting" to the men; that her mailbox was too full; and that her attitude was poor. She claims that male patrolmen were not subject to this scrutiny. (Docket No. 17 at ¶ 36-39). In addition, she claims that she was served with a counseling memo because she "ran" her own license plate even though she had her supervisor's permission. (Docket No. 17 at ¶ 51). The plaintiff alleges that during this time, she was first told that she was writing too many tickets and that she should stop; then she was told she was not writing enough tickets. (Docket No. 17 at ¶ 52).

Finally, Cunningham asserts that she was vilified for complaining about the conduct of the Ellicott Police Department with respect to the special treatment allegedly afforded to Joshua Tyler, son of the Ellicott Town Supervisor Patrick Tyler. The plaintiff contends that Joshua Tyler was stopped for speeding on October 26, 2003 by Officer Brandon Maggio. According to the plaintiff, Maggio determined that Joshua Tyler's license had been previously revoked and that cocaine was found during search of young Tyler's car. According to Cunningham, Joshua Tyler was processed on the driving charges but not charged with possession of cocaine. Instead, the plaintiff contends, Patrick Tyler was summoned to the scene, and Joshua ...

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