The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This case is before the Court on Defendants' motion for summary judgment seeking dismissal of the remaining two causes of action in the amended complaint. For the reasons stated below, the Court grants the motion and dismisses the complaint.
Plaintiff commenced her lawsuit by filing an initial complaint in this Court on November 17, 2006. Subsequently, on January 4, 2007, she filed a First Amended Complaint ("Amended Complaint") raising six causes of action. Following the close of discovery on July 1, 2008, Defendants filed the pending motion for summary judgment and supporting documents.
In a declaration signed on September 15, 2008, six-hundred and twenty days after filing the First Amended Complaint, Plaintiff's counsel, Christina A. Agola, Esq., withdrew the following claims: Sexual Harassment in violation of 42 U.S.C. § 1983 against the Town of Geneva; Sexual Harassment in violation of Title VII against the Town of Geneva; Sexual Retaliation in violation of the New York Human Rights Law against the Town of Geneva; Retaliation and Post-termination retaliation under New York Human Rights Law against the Town of Geneva and its Supervisor, Mary Luckern, in her official and individual capacities. (Agola Decl., at 1-2.) Though she does not identify the claims withdrawn by their cause of action numbers in the amended complaint, the Court interpreted Ms. Agola's declaration to mean she is withdrawing the First, Third, Fourth, and Sixth causes of action in the amended complaint filed on January 4, 2007, and that interpretation was confirmed by Ms. Agola's associate, Jason Little, Esq., who argued the motion on Ms. Agola's behalf.
Consequently, Defendant's summary judgment application is directed at Plaintiff's two remaining causes of action -- her second cause of action alleging retaliation in violation of the First Amendment and her fifth cause of action alleging sexual discrimination in violation of Title VII.
The following background information is taken from Defendants' Local Rule 56.1 Statement of Facts, and Plaintiff's response thereto, and is limited to the remaining two causes of action. Plaintiff served as the Town Clerk of Greece, an elected position, from 1995 until her term expired on December 31, 2005, after she did not win re-election. Throughout her tenure, Plaintiff was involved in interpersonal or political conflicts with other town employees. In June 2005, it was discovered that the then-Town Attorney, Carleton Brownell, had been viewing pornography on his computer at the town hall. In July 2005, approximately a month after Mr. Brownell's conduct was discovered, he resigned.
In March 2006, Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) complaining that she had been subjected to a hostile work environment while Town Clerk. She then commenced this Title VII and Human Rights Law action complaining she was subjected to a hostile work environment, and more specifically that Mr. Brownell had sexually harassed her by invading her personal space and staring at her breasts on an unspecified number of occasions.
Following her first deposition, Plaintiff "supplemented her discovery to reflect" her appointed position as Registrar of Vital Statistics, Records Access Officer and Records Management Officer. (Pl.'s Counter-Statement of Facts, at 4.) Plaintiff asserts in her response to the motion that her appointed positions within the Town qualify her for coverage under Title VII.
Pursuant to Court order, Plaintiff was deposed a second time with respect to these appointed positions and in that second deposition, Plaintiff made the following statements. In addition to being elected as Town Clerk, she was also appointed as Registrar of Vital Statistics, Records Access Officer, and Records Management Officer. These appointments were made by the Town Board in 1995. With respect to these appointed positions, Plaintiff understood that she was supposed to work closely with the Town Board and was answerable to them. In addition to her compensation as Town Clerk, Plaintiff received compensation of $686.00 with respect to the registrar position, but did not receive any additional compensation for the positions of Records Management Officer and Records Access Officer.
At her second deposition, Plaintiff further asserted that she had not referenced the appointed positions in her prior pleadings and interrogatory responses because she felt that they were intertwined with her Town Clerk position. (Plaintiff supplemental deposition, at 11.) She characterized the relationship between her elected position as Town Clerk and the appointed positions as "intermingled...intertwined into one...[and] co-mingled." (Plaintiff's supplemental deposition, at 12-13.) She also stated that it was "impossible to distinguish" the appointed position from her duties as Town Clerk. (Id., at 30.) According to Plaintiff, all her positions with the Town were "all meshed together" and "intertwined." (Id.) She worked in the same office, used the same forms, and used the same files for all of her positions with the Town. She did not consider the Town or any Town official to be her supervisor with respect to the appointed positions. (Id., at 30-33.) Instead, she considered the State of New York to be her supervisor with respect to the Registrar of Vital Statistics position and regarded the "Chief Fiscal Officer"*fn1 also as a supervisor. (Id., at 32-33.) She did not consider herself to have any supervisor with respect to her appointed positions of Record Access Officer and Records Management Officer. (Id., at 33.)
In addition, with respect to the appointed positions, Plaintiff supervised her own support staff, had no set schedule, and never received a performance review related to the appointed positions. As the Registrar of Vital Statistics, Plaintiff handled birth certificates, death certificates, burial certificates, and genealogy requests. (Id., at 12, 32.) As the Records Access Officer, Plaintiff handled Freedom of Information Law requests for Town records, and as Records Management Officer, Plaintiff managed Town records. (Id., at 13.)
At her first deposition, Plaintiff testified that her sexual-harassment claims were based on conduct allegedly committed by Mr. Brownell while he served as the Town Attorney at the same time she was Town Clerk. Plaintiff claimed that the alleged harassment consisted of Mr. Brownell intimidating her with "unwelcome stares," having an "intimidating demeanor and stature," "hovering over" Plaintiff while reading legal books, and "invading" Plaintiff's personal space. (Guerrieri Dep., at 45.)
Plaintiff stated she perceived his behavior as sexual harassment because, on certain unspecified occasions, Mr. Brownell was looking at her breasts while engaging in this behavior. (Plaintiff Dep., at 40.) Plaintiff stated, at her deposition, that Mr. Brownell never said anything to her of a sexually derogatory nature, never touched her when he allegedly invaded her personal space, never touched her in an inappropriate manner, never sexually propositioned her, and never requested sexual favors from her. (Guerrieri Dep., at 68.) The only specific instance Plaintiff could recall regarding Mr. Brownell acting inappropriately occurred during May 2005 when Plaintiff and he were discussing the requirements for the meeting minutes of a May 18, 2005, Town Board meeting. During this encounter, Plaintiff claims that Mr. Brownell stood over her with an "intimidating stance and stature," while "hovering over" her and reading a law book. (Guerrieri Dep., 84.) Plaintiff said that she felt "intimidated" and "stressed." (Guerrieri Dep., at 84.) She said she felt Mr. Brownell was "invading her personal area," but admitted that he did not touch or threaten her. She claimed, however, that he glanced at her breasts for "a matter of seconds." (Guerrieri Dep., at 90, 92.)
Plaintiff never actually observed Mr. Brownell viewing pornography at Town Hall. (Guerrieri Dep., at 73.) She first became aware that he was allegedly viewing pornography when her husband received a manila envelope in the mail containing photographs of what Plaintiff believed was Mr. Brownell in his office at Town Hall viewing pornography. (Guerrieri Dep., at 69.) Until her husband received the ...