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Duch v. Kohn

August 2, 2007


The opinion of the court was delivered by: Loretta A. Preska, U.S.D.J.


Plaintiff Karen Duch brought the above-captioned action for employment discrimination against Defendants Brian Kohn ("Kohn"), Lt. Edward Jakubek ("Jakubek"),*fn1 the Office of Court Administration ("OCA"), and New York State ("New York"). Defendants Jakubek, OCA, and New York (collectively, the "Employer Defendants"), now jointly move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that they are immune from liability for violations of the New York State Human Rights Law ("NYHRL") and New York City Human Rights Law ("NYCHRL") under the Eleventh Amendment, and that no liability for any hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. can be imputed to them. Defendant Kohn, Plaintiff's co-employee, also moves for summary judgment dismissing the Title VII, NYHRL, and NYCHRL claims against him. Finally, Plaintiff cross-moves for partial summary judgment on her Title VII claim against the Employer Defendants on the ground that she was subject to a hostile work environment and separately moves to amend her Complaint to include NYHRL and NYCHRL claims against Jakubek in his individual capacity. For the following reasons, the joint motion of the Employer Defendants is granted, Kohn's motion is granted, and Plaintiff's cross-motion is denied.


At all times relevant to this case, Plaintiff was employed as a Court Officer by the New York State Unified Court System ("UCS"). (Employer Defs. 56.1 Stmt. ¶ 1.)*fn3 OCA is the administrative arm of the UCS. (Id. ¶ 2.) Plaintiff entered the UCS Court Officers Academy (the "Academy") on June 28, 1999. (Id. ¶ 31.) While at the Academy, Plaintiff received materials that she describes as "a booklet on sexual harassment policy." (Pl. Employer Reply 56.1 Stmt. ¶ 33; see also Employer Defs. 56.1 Stmt. ¶ 33.)*fn4

On August 12, 1999, Plaintiff was assigned to Midtown Community Court ("MCC"). (Employer Defs. 56.1 Stmt. ¶ 34.) The MCC is located at 314 West 54th Street, New York, New York. (Id. ¶ 36.) The personnel at the MCC consisted of one Judge, a Lieutenant, a Sergeant, approximately twelve Court Officers, and four Court Clerks. (Id. ¶ 39.)

During the period in question, Rosemary Christiano ("Christiano") was also a court officer and the Equal Employment Opportunity ("EEO") Liaison at the MCC. (Id. ¶ 63.) Jakubek was the highest-ranking Court Officer at the MCC. (Id. ¶ 4.) The highest-ranking administrative official at the MCC was Chief Court Clerk Don Vasti ("Vasti"). (Pl. Employer Reply 56.1 Stmt. ¶ 4.) In March 1999, Kohn commenced working for the OCA as a Court Officer. He was assigned to the MCC in May 2001. (Employer Defs. 56.1 Stmt. ¶¶ 5-6.) Throughout the period in which Plaintiff worked with Kohn, they were of the same rank. (Pl. Kohn Reply 56.1 Stmt. ¶ 3.)*fn5

On September 25, 2001, Plaintiff and Kohn engaged in a consensual sexual encounter at Plaintiff's apartment. (Employer Defs. 56.1 Stmt. ¶ 48.) This encounter did not involve intercourse. (Pl. Employer Reply 56.1 Stmt. ¶ 48.)

From September 2001 until her departure in January 2002, Plaintiff testified that Kohn made a series of unwanted sexual advances towards her. (Noonan Opp. Decl., Ex. D at 65/6-12, 137/5-8, 272/8-13.)*fn6 These advances included, according to Plaintiff, unwanted and sexually graphic language, physical gestures, and physical contact. (Id. at 69/1-17.) The Employer Defendants acknowledge Plaintiff's allegations but do not take a position on the issue of the underlying alleged conduct. (Employer Defs. 56.1 Stmt. ¶ 50.) Kohn admits to having had a consensual encounter with Plaintiff but denies that he sexually harassed her. (Kohn Aff. ¶ 11.)*fn7

At some point in October 2001, Plaintiff asked Jakubek to change her schedule so that she would not have to work with Kohn. (Pl. Employer Reply 56.1 Stmt. ¶ 51.) Jakubek responded by inquiring as to the reason for Plaintiff's request. (Id. ¶ 52.) However, Plaintiff did not explain the basis for her request. (Id.; Noonan Opp. Decl., Ex. D at 115/11-25, 116/1-25, 117/1-25, 118/1-25, 119/1-15.) Plaintiff maintains that she "provided Jakubek with sufficient information that should have indicated to him that discriminatory conduct occurred" and maintains further that Jakubek stated, "I don't want to know what happened." (Id. ¶¶ 52, 57.) Jakubek then spoke with Kohn and told him "to knock it off." (Employer Defs. 56.1 Stmt. ¶¶ 52, 55.) Thereafter, Jakubek did not schedule Plaintiff and Kohn to work together. (Id. ¶ 59.)

At some later point in October 2001, Plaintiff spoke with Christiano about Kohn's harassment. (Noonan Opp. Decl., Ex. D at 142/24-25.) Prior to their first conversation, Plaintiff was unaware of Christiano's capacity as an EEO Liaison. (Id. at 144/1-21.) During their initial conversation, Christiano asked Plaintiff if she was telling her about this misconduct as a friend or in her capacity as an EEO Liaison. (Id. at 144/5-7.) Plaintiff responded, "I think I'm telling you as a friend." (Id. at 144/17-18.)

This exchange was where Plaintiff first learned that Christiano was the EEO Liaison. (Id. at 144/20-21.) Plaintiff never told Christiano to report Kohn's alleged behavior. (Id. at 217/24-218/3.) Christiano testified that she asked whether Plaintiff wished her to report Kohn's conduct and that Plaintiff replied "absolutely not." (Employer Defs. 56.1 Stmt. ¶ 67.) Plaintiff told Christiano of the harassment "hoping that Christiano would stop or report the conduct." (Pl. Employer Reply 56.1 Stmt. ¶¶ 66-67) (emphasis added.)

In December 2001, Court Officer David Joseph ("Joseph") replaced Christiano as EEO Liaison. (Pl. Employer Reply 56.1 Stmt. ¶ 67.) Plaintiff informed Joseph of Kohn's alleged conduct and stated that she wanted to file a formal complaint. (Noonan Opp. Decl., Ex. J at 86/18-87/19.)*fn8 Joseph then contacted Vasti and set up a meeting for them. (Id. at 88/13-16.)

On January 8, 2002, Plaintiff spoke with Vasti regarding Kohn's alleged conduct. (Employer Defs. 56.1 Stmt. ¶ 59.) On January 11, 2002, Plaintiff filed a claim of discriminatory treatment with the Office of the Special Inspector General for Bias Matters. (Id. ¶ 60.)

That day, Special Inspector General of Bias Matters Desiree Kim investigated Plaintiff's complaint of sexual harassment. (Pl. 56.1 Stmt. ¶¶ 20-21.)*fn9 The investigation included interviews of twenty individuals and an administrative hearing. (Employer Defs. 56.1 Stmt. ¶¶ 73-81.) On the basis of this investigation, disciplinary charges were brought against Kohn. (Pl. 56.1 Stmt ¶ 24.) The UCS prosecuted Kohn in disciplinary hearings, seeking to prove Kohn guilty of misconduct. (Id. ¶ 34.)

The administrative disciplinary hearing culminated in the dismissal of all charges against Kohn on the ground that Plaintiff failed to submit to cross-examination. (Employer Defs. 56.1 Stmt. ¶¶ 102-103.) Plaintiff does not dispute the fact of her absence from the proceedings but asserts that it was due to her being medically unfit to testify. (Pl. Employer Reply 56.1 Stmt. ¶ 89.)

Although the parties do not agree on the precise date or terms of Plaintiff's departure, it is undisputed that Plaintiff ceased to work for the UCS in December 2002. (Employer Defs. 56.1 Stmt. ¶¶ 68-72; Pl. Employer Reply 56.1 Stmt. ¶¶ 68-72.) On January 7, 2004, Plaintiff commenced this action seeking compensatory damages of $600,000, punitive damages, costs and fees. (Noonan Opp. Decl., Ex. A at 5-6.)*fn10


1. Legal Standard for Summary Judgment Under Rule 56

"Summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). "[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (citing Fed. R. Civ. P. 56(e)). "Factual disputes that are irrelevant or unnecessary" cannot defeat a motion for summary judgment. Id. at 248.

"In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to the non-movant . . . ." Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 253 (2d Cir. 2002) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); see also Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997) ("In assessing the record to determine whether there is such an issue, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought."). Only if it is apparent that no rational fact-finder "could find in favor of the nonmoving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

2. Application to Motion by the Employer Defendants

a. State and Municipal Anti-Discrimination Claims

The Eleventh Amendment of the Constitution bars a suit in a court of the United States against a state, or one of its agencies, absent its consent to such a suit or an express statutory waiver of immunity. U.S. Const. amend. XI; see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984) ("We have insisted. . . that [a] State's consent [to suit in federal court] be unequivocally expressed."). It is well-settled that the scope of this immunity extends to a state official who is sued in his official capacity. See Jin Ying Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) ("To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state."). Accordingly, New York, its agency, OCA, and the agency official, Jakubek, are each entitled to invoke Eleventh Amendment immunity.

New York has not waived its Eleventh Amendment immunity with respect to claims arising under the NYHRL or NYCHRL. See Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) ("The City of New York does not have the power to abrogate the immunity of the State, and we find no evidence that the State has consented to suit in Federal court under the [NYCHRL]."); Jungels v. State Univ. Coll. of New York, 922 F. Supp. 779, 784 (W.D.N.Y. 1996) ("There is no basis for finding . . . a waiver [of ...

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