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Witt v. Moffe

February 5, 2008


The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court



Plaintiffs, Donna Witt and Gregory Worrell, employees of the New York State Police ("NYS Police"), brought this action against their employer and their former supervisors, Captain Edward Moffe and Sergeant Gary Segrue, alleging violations under Title VII, 42 U.S.C. § 2000e et. seq., and 42 U.S.C. § 1983. In the complaint, plaintiff Witt alleges that she was subjected to a hostile work environment by her then-supervisor, Gary Segrue, and that after making a complaint of gender discrimination, defendant Moffe retaliated against her. Plaintiff Worrell alleges that after assisting Witt with the filing of her discrimination complaint, he also experienced retaliation by defendants Moffe and the NYS Police. Both plaintiffs also alleged First Amendment deprivations under § 1983.

This case was referred to Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to U.S.C. § 636(b)(1). The defendants filed motions for summary judgment. Plaintiffs opposed those motions. On September 6, 2007, Magistrate Judge Schroeder filed a report and recommendation ("Report and Recommendation") recommending that: (1) summary judgment be granted to defendants as to plaintiff Witt's hostile work environment and retaliation claims; (2) summary judgment be denied as to plaintiff Worrell's retaliation claim; and (3) summary judgment be granted to defendants as to the First Amendment claims by Witt and Worrell.

Both parties filed limited objections to the Report and Recommendation. Oral argument was held on January 4, 2007.


Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review, and after reviewing the submissions and hearing argument from the parties, the Court hereby adopts Magistrate Judge Schroeder's Report and Recommendation. With regard to defendants' motion for summary judgment on plaintiff Witt's hostile work environment claim, in addition to the reasons set forth in the Report and Recommendation, the Court finds that summary judgment is appropriate because Witt has failed to satisfy the subjective component of that claim. The Supreme Court has made clear that a hostile work environment claim contains both an objective and a subjective component. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). "[I]f the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation." Id. In other words, the plaintiff herself must believe that she is being treated badly, and that the reason for the mistreatment is unlawful discrimination. Id.; see also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (stating that a hostile work environment claim involves both an objective and subjective component). In this case, plaintiff Witt gave a sworn statement indicating that she did not subjectively believe that defendant Segrue's behavior was motivated by an unlawful intent to discriminate. See Report and Recommendation, at 10 (citing Dkt. 33, at p. 71). According to Witt, "[defendant] Segrue treat[ed] everyone poorly. I can't attribute it to gender or race specifically." Id. Given that admission, plaintiff cannot satisfy the subjective component of her hostile work environment claim, i.e. that she subjectively believed she was being treated poorly because of her gender, and summary judgment is appropriate.

The Court also adopts Magistrate Judge Schroeder's recommendation to grant summary judgment in favor of the defendants on the plaintiffs' First Amendment claims, as to which no objection has been filed.

As to plaintiff Worrell's claim of retaliation, the Court adopts Magistrate Judge Schroeder's recommendation to deny summary judgment because a material issue of fact exists as to whether the State Police engaged in retaliatory conduct when they issued a "letter of counseling" finding that Worrell had violated a State Police regulation relating to the disclosure of confidential information.

To state a claim for retaliation in violation of Title VII, a plaintiff must show that: (1) he participated in a protected activity known to the defendant; (2) the defendant took an employment action disadvantaging him; and (3) there exists a causal connection between the protected activity and the adverse action. See Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007).

Defendant State Police objects to Magistrate Judge Schroeder's determination that the issuance of a letter of counseling constituted an "adverse action" sufficient to satisfy plaintiff Worrell's prima facie burden. As the defendant is aware, the Supreme Court recently clarified that the scope of the anti-retaliation provision is broader than Title VII's substantive provision in that, unlike Title VII's substantive provision, the anti-retaliation provision "is not limited to discriminatory actions that affect the terms and conditions of employment." See Burlington Northern & Santa Fe Railway Co. v. White, --- U.S. ----, 126 S.Ct. 2405, 2412-13 (2006). Rather, to prevail on a claim for retaliation under Title VII, "a plaintiff must [simply] show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 2415 (internal quotation marks omitted).

This Court agrees with Magistrate Judge Schroeder's conclusion that the issuance of the letter of counseling and the corresponding notation in Worrell's personnel record indicating that a "Disciplinary/Personnel Complaint" against him was "deemed founded" would dissuade a reasonable worker from making or supporting a charge of discrimination. See Rivers v. Potter, Civ. Action No. 05-4868, 2007 WL 4440880 (D.N.J. Dec. 18, 2007) (finding that "letter of warning" would tend to dissuade a reasonable employee from engaging in future protected action and therefore satisfied the "adverse action" requirement of a retaliation claim even though same letter would not satisfy the "adverse action" requirement of a substantive Title VII claim). Accordingly, plaintiff Worrell has met this element of his prima facie burden. Furthermore, the fact that the disciplinary complaint was initiated by Captain Moffe shortly after Worrell instituted Witt's EEOC charge satisfies the requisite causal nexus between the complaint and the discriminatory action.

Alternatively, the State Police argue that Worrell admitted the misconduct cited in the letter of counseling and that his admission provides a legitimate non-discriminatory reason for the counseling letter. Worrell disputes the State Police's characterization of his testimony as an admission of misconduct. The Court finds that there is a material issue of fact as to whether Worrell admitted to engaging in the misconduct alleged in the letter of counseling.

Worrell was counseled for "having discussed [a] pending insubordination complaint in the presence of Investigator Feldman" in violation of State Police Regulation 8F2 which prohibits the disclosure confidential information regarding a pending personnel complaint. See Dkt. 57-2, at p. 87, 89 (emphasis added). The insubordination complaint at issue was a complaint by Sergeant Melissa ...

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