The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Terrence Jamison ("plaintiff") brings suit against supervisors and directors at the Central New York Psychiatric Center ("Psychiatric Center") and two members of his union, the New York State Correctional Officers & Police Benevolent Association, Inc. ("NYSCOPBA"). In his amended complaint, plaintiff brings claims against all defendants for disparate treatment (Causes of Action One, Two, and Three), hostile work environment (Claims Four, Five, and Six), and unlawful retaliation (Causes of Action Seven, Eight, and Nine) pursuant to 42 U.S.C. § 1981 ("§ 1981"), 42 U.S.C. § 1983 ("§ 1983"), and the New York Human Rights Law, N.Y. EXEC. § 290, et seq. ("HRL"). Plaintiff also alleges all defendants unlawfully conspired to deprive him of his constitutional rights (Causes of Action Ten and Eleven) and discriminated against him on account of his disability (Causes of Action Twelve, Thirteen, and Fourteen). Finally, without pleading a specific statute under which his claim may be asserted, plaintiff alleges that his supervisors at the Psychiatric Center were deliberately indifferent to the unlawful actions of the defendants (Cause of Action Fifteen).*fn1
All of the defendants are sued individually and plaintiff's employer is not a defendant.
Before filing their answers, all defendants now move to dismiss Claims One through Fourteen pursuant to Federal Rule of Civil Procedure 12(b)(6). The defendants are represented by separate counsel in relation to their different employers, and accordingly, submit separate arguments in support of their respective motions. Defendants Michael Chapman, Bernard Stooks, William Moorehead, Hal E. Smith, James Catanzaro, Richard Stevenson, Corey Conley, Janet Hanna, and Pamela Carrier (the "state defendants") work at the Psychiatric Center and are represented by the New York State Attorney General. Defendants Keith Zulko and Eric Jones (the "union defendants") worked for the NYSCOPBA at all relevant times as Vice President and Business Agent, respectively, and are represented by private counsel. Plaintiff opposes both motions to dismiss. Oral argument was heard on March 25, 2009 in Utica, New York. Decision was reserved.
The following facts alleged in the complaint are accepted as true for purposes of resolving defendants' Rule 12(b)(6) motion to dismiss. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted). In June of 2003, plaintiff was employed by the New York State Office of Mental Health as a Security Hospital Treatment Assistant at the Psychiatric Center in Marcy, New York. As an African-American, plaintiff alleges he was subjected to a pattern of racially discriminatory conduct and a hostile work environment at the Psychiatric Center between June 2003 and October 2004. Plaintiff alleges that his supervisors, defendants Chapman and Moorehead, ignored his complaints of such conduct and that defendant Chapman often told plaintiff to "remember who does your evaluation." (Pl's. Am. Compl., Dkt. No. 37, ¶ 27.)
As a result, plaintiff filed an internal complaint of racial discrimination with the Psychiatric Center's Human Resources Director on or about October 4, 2004. As news of his complaint spread throughout the Psychiatric Center, plaintiff and one of the African-American witnesses identified in his complaint were subjected to discriminatory and retaliatory conduct, including racially derogatory comments and the witness's eventual termination shortly after the complaint was filed. The Psychiatric Center launched an investigation of plaintiff's complaint on November 9, 2004. In January of 2005, an internal memorandum was issued concluding that plaintiff was frequently subjected to comments that were inappropriate for the workplace and that defendant Chapman needed cultural sensitivity training.
On June 14, 2005, plaintiff received notice that he was no longer entitled to Workers' Compensation benefits in connection with a prior work-related injury to his shoulder. He was also informed that he would be terminated pursuant to New York Civil Service Law § 73 because he had received Workers' Compensation benefits for more than a year. Following his union's successful negotiation on his behalf, plaintiff returned to work on August 8, 2005.
Plaintiff alleges he was subjected to multiple acts of retaliation upon his return to work, including intimidation, harassment, and a dispute with his supervisors about whether he worked overtime. Plaintiff also alleges he was further harassed when defendant Stooks questioned him in front of his co-workers about his decision to pick up his paycheck at work despite calling in sick. According to plaintiff, he became disabled due to work-related stress on August 19, 2005.
Plaintiff met with his union representatives, defendants Zulko and Jones, on August 24, 2005 to discuss his complaints with the state defendants, including the possibility of a transfer to another psychiatric center. According to plaintiff, the union defendants agreed at this first meeting to process his grievance and help facilitate his transfer. On August 31, 2005, plaintiff met with defendants Zulko, Jones, Stevenson, and Conley in an attempt to resolve his internal complaints. Before the meeting began, plaintiff alleges he saw defendant Zulko and defendant Stevenson emerge together from behind a closed door. At the second meeting, the defendants refused to facilitate plaintiff's request for a transfer to another facility or take corrective action with respect to his complaints of racial discrimination and harassment at the Psychiatric Center. Plaintiff alleges that white employees and employees who complain of disabilities other than mental stress are routinely supported in their efforts to secure transfers to other mental health facilities.
On September 1, 2005, a New York State Trooper visited plaintiff's home and instructed that he report to defendant Jones. During the encounter, the Trooper admitted to plaintiff that "we don't normally do this." (Id. ¶ 44.) Afterwards, plaintiff wrote a letter to the principal clerk of the Psychiatric Center, defendant Carrier, asking about his claim for Workers' Compensation benefits on account of his mental stress disability. On September 8, 2005, defendant Carrier contacted the State Insurance Fund to formally contest plaintiff's Workers' Compensation claim. According to plaintiff, defendant Carrier worked with the other defendants to intentionally omit or misrepresent the facts surrounding his injury, thereby resulting in the denial of his claim for benefits, in retaliation for his prior complaints of discrimination.
In a letter dated July 20, 2006, plaintiff was again informed that he would be terminated as of August 20, 2006 because he had been medically disabled for more than a year. Plaintiff has not since returned to the Psychiatric Center. Plaintiff's original complaint was filed on August 8, 2008.
A. Motion to Dismiss Pursuant to Rule 12(b)(6)
In consideration of the defendants' motions to dismiss under Rule 12(b)(6), all factual allegations and ambiguities are construed in the light most favorable to the plaintiff. See McCarthy, 482 F.3d at 191. A cause of action will be dismissed for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957). The question presented is whether a plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face," and a plaintiff must have "nudged [his] claims across the line from conceivable to plausible" in order to avoid dismissal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007).
B. Statute of Limitations
As a preliminary matter, plaintiff concedes that he may not seek damages for any acts of discrimination or retaliation alleged to have occurred more than three years before the filing of his original complaint on August 8, 2008. See Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 331 (2d Cir. 1997) (citing Bd. of Regents of S.U.N.Y. v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 1795 (1980)). Therefore, plaintiff will be barred from recovering damages for any acts of discrimination or retaliation alleged to have occurred prior to August 8, 2005.
However, plaintiff may rely upon acts prior to the three year statute of limitations for his hostile work environment claims pursuant to the Supreme Court's ruling in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002). So long as at least one of the acts giving rise to his hostile work environment claim occurred within the statutory time period, "the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 117, 122 S.Ct. at 2074. Therefore, plaintiff is not necessarily barred from recovering for hostile acts outside the three-year statute of limitations. Rather, he may do so provided he alleges acts which contributed to the hostile work environment and occurred within the filing period.
C. The Union Defendants' Motion to Dismiss
1. Racial Discrimination (Causes of Action One, Two, and Three)
Plaintiff's claims for racial discrimination are brought pursuant to § 1981, § 1983, and the HRL. The union defendants contend that plaintiff does not allege sufficient facts in his amended complaint to show they were personally involved in any of the alleged acts of racial discrimination. To state a viable claim pursuant to §1981 or § 1983, a plaintiff must plead facts demonstrating the defendant's personal involvement in the alleged violation. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004) (citations omitted). Similarly, the HRL requires that the defendant have "actually particpate[d] in the conduct giving rise to a discrimination claim." Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)).
The facts pleaded with respect to the union defendants are limited to the allegations made in paragraphs 40-45 of the amended complaint. (See Pl's. Am. Compl., Dkt. No. 37, ¶¶ 40-45.) With respect to his allegations of racial discrimination, plaintiff asserts that the union defendants initially agreed to help process his employee grievance and secure his transfer to another psychiatric center but later downplayed his complaints and refused to support his transfer request after they met with defendant Stevenson. (Id. ¶¶ 40- 41.) Plaintiff further alleges that the defendants had supported transfer requests made by white employees. (Id. ¶ 42.)*fn2
Construing these factual assertions in the light most favorable to the plaintiff, the amended complaint states sufficient facts to show that the union defendants acted intentionally and were personally involved in the alleged acts of discrimination. In particular, given the abrupt change of heart exhibited by the union defendants after the closed-door meeting with defendant Stevenson on August 31, 2005, there exists a reasonable inference that they acted in cooperation with the state defendants to intentionally discriminate against plaintiff on account of his race. Even assuming that the union defendants deny any cooperation with defendant Stevenson, the sudden change in their attitude towards plaintiff, coupled with plaintiff's allegation that white employees' requests for transfers are frequently accommodated, is sufficient to demonstrate the union defendants' personal involvement in the alleged acts of discrimination and otherwise satisfies plaintiff's minimal burden at this stage in the proceedings.
The union defendants' argument that they were not state actors for purposes of liability under § 1983 is equally unpersuasive in light of their alleged actions before and after their meeting with defendant Stevenson. Discrimination claims brought pursuant to § 1983 require "that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 (1988). Nevertheless, the conduct of private employees may be considered state action "when a private actor operates as a 'willful participant in joint activity with the State or its agents.'" Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296, 121 S.Ct. 924, 930 (2001) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 941, 102 S.Ct. 2744, 2756 (1982)).
An alleged conspiracy between state and private actors may constitute joint state action by all of the defendants. See Hughes v. Patrolmen's Benevolent Ass'n of the City of New York, 850 F.2d 876, 880-81 (2d Cir. 1988). Like the present plaintiff, the plaintiff in Hughes asserted a § 1983 action against, inter alia, the First Vice President of his police officer's union and the City of New York Police Department under the theory that the two defendants conspired with one another to deprive him of his federal civil rights. Id. The Second Circuit affirmed the decision to allow the § 1983 claim to proceed against the First Vice President of the police officer's union in light of the factual allegations that, if true, would establish that he acted in concert with plaintiff's commanding officers within the police department. Id. at 881.
Applying the holding in Hughes to the factual allegations here, plaintiff's assertion that the union defendants reneged on their initial agreement to help effect his transfer after meeting behind closed doors with defendant Stevenson provides a factual basis to infer that the union defendants conspired with plaintiff's supervisors at the Psychiatric Center. Accordingly, the union defendants may be considered state actors for purposes of plaintiff's § 1983 claims.
2. Hostile Work Environment (Causes of Action Four, Five, and Six)
To sustain a claim for hostile work environment, plaintiff must allege facts that, if true, would establish that his workplace was so "permeated with discriminatory intimidation, ridicule, and insult" that his employment conditions were altered. Patterson, 375 F.3d at 227 (internal quotation marks and citation omitted). Plaintiff must also plead facts that show he "was subjected to the hostility because of [his] membership in a protected class." Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 241 (2d Cir. 2007) (quoting Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999)). Accordingly, a workplace will not be considered hostile if the environment is equally intimidating or offensive for both members and non-members of plaintiff's protected class. Brennan, 192 F.3d at 318.
In contrast to the state defendants, the union defendants are not alleged to have participated in any of the conduct which occurred outside the three-year statute of limitations. Rather, plaintiff's first allegation against the union defendants occurred on August 31, 2005 when they refused to process his workplace grievance or facilitate his transfer to another facility. Therefore, despite the Supreme Court's ruling in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002), none of the hostile acts which are alleged to have occurred prior to August 31, 2005 will be considered in relation to plaintiff's hostile work environment against the union defendants.
Taking into consideration the limited factual allegations related to the union defendants, plaintiff's pleadings are insufficient to state a claim against them for a hostile work environment. Although plaintiff alleges the union defendants ordered a New York State Trooper to harass him at his home on September 1, 2005, plaintiff never alleges that this was done as a result of his membership in a protected class. Instead, this discrete event gives rise only to plaintiff's claim of retaliation. Plaintiff's remaining allegation against the union defendants--that they failed to process his workplace grievance and facilitate his transfer to another facility--is likewise insufficient, but this allegation fails for a different reason. Although plaintiff alleges that the union defendants were motivated by his status as an African-American, this single instance of hostility on account of his race does not rise to the level of pervasiveness needed to sustain a hostile work environment claim. A single act cannot satisfy the threshold level of severity unless it is very serious. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (citing Brennan, 192 F.3d at 318). Examples of a solitary act that would be considered sufficiently pervasive include committing rape, see Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (citation omitted) or making a vile and sexually explicit abusive comment in front of a plaintiff's subordinates. See Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000). By way of comparison to these examples, the union defendant's refusal to process plaintiff's grievance and facilitate his transfer during the August 31, 2005 meeting falls far below the base level of severity for establishing a hostile work environment. Therefore, without more factual allegations related to the union defendants, their motion to dismiss plaintiff's hostile work environment claims will be granted (Causes of Action Four, Five, and Six).
3. Retaliation (Causes of Action Seven, Eight, and Nine)
As with his claims of racial discrimination and hostile work environment, plaintiff brings his retaliation claims pursuant to § 1981, § 1983, and the HRL. Section 1983 provides a cause of action against state actors who participate in the deprivation of a person's federal constitutional rights. 42 U.S.C. § 1983. Thus, in addition to proving that the defendants are state actors, a plaintiff must allege the violation of a federal constitutional right. West, 487 U.S. at 48, 108 S.Ct. at 2254-55.
According to the amended complaint, plaintiff's retaliation claim pursuant to § 1983 is based upon the deprivation of his rights under the equal protection clause of the Fourteenth Amendment to the United States Constitution. (See Pl's. Am. Compl., Dkt. No. 37, ¶ 63.) However, the conduct plaintiff complains of "is alleged to be the product, not of discrimination, but of retaliation for [his] complaints of discrimination." Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996) (emphasis added). While § 1983 claims for retaliation typically allege a violation of the plaintiff's First Amendment rights, the equal protection clause does not protect against retaliation due to complaints of racial discrimination. Id. ("[W]e know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of discrimination. Given the availability of Title VII, which [the plaintiff] has chosen not to invoke, we see no reason to break new constitutional ground in this case."). As with the plaintiff in Bernheim, the plaintiff here neither alleged a deprivation of his First Amendment right to free speech nor asserted a cause of action pursuant to the anti-retaliation provision of Title VII. Therefore, having failed to allege the deprivation of a recognized constitutional right in connection with his retaliation claim, plaintiff's retaliation claim must be dismissed to the extent it is brought under § 1983 (Cause of Action Eight).
In any event, plaintiff may still assert a federal claim for retaliation under § 1981 (Cause of Action Seven). See Choudhury v. Polytechnic Inst. of N.Y., 735 F.2d 38, 43 (2d Cir. 1984) ("A retaliation claim is cognizable under § 1981 to make that section an available and effective remedy for racially motivated employment discrimination."). Similarly, plaintiff's failure to assert a deprivation of his First Amendment right to free speech does not bar his state law retaliation claim under the HRL (Cause of Action Nine).
To establish a prima facie case of retaliation, plaintiff must plead facts showing that: (1) he engaged in a protected activity; (2) the defendant was aware of the activity; (3) the defendant took adverse action against him; and (4) there was a causal connection between the protected activity and the adverse action. Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 608 (2d Cir. 2006) (citation omitted); Lizardo v. Denny's, Inc., 270 F.3d 94, 105 (2d Cir. 2001) (citation omitted).
The union defendants again argue that there are insufficient allegations to establish that either of them were personally involved in any allegedly retaliatory action. With respect to his retaliation claim, plaintiff alleges that a New York State Trooper visited his residence on September 1, 2005 to harass and intimidate him. (Pl's. Am. Compl., Dkt. No. 37, ¶ 44.) According to plaintiff, the Trooper said "we don't normally do this" and ordered him to report to defendant Jones. (Id.)
Two aspects of the alleged incident with the New York State Trooper serve as circumstantial evidence from which the union defendants' personal involvement could be established: first, the Trooper visited plaintiff's home on September 1, 2005--the day after plaintiff unsuccessfully tried to persuade the union defendants to help process his workplace grievance and secure his transfer on August 31, 2005; and second, the Trooper ordered him to report to his union's Vice President, defendant Jones, instead of one of his supervisors at the Psychiatric Center. Accordingly, there is a factual basis to conclude that the union defendants, at a minimum, cooperated with some of the state defendants to send a Trooper to plaintiff's home.
Alternatively, the union defendants argue that plaintiff has not pleaded facts demonstrating that he suffered a materially adverse employment action after filing his internal complaint of racial discrimination on October 4, 2004. Whether an employment action is materially adverse depends upon if the defendant's conduct would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fey Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415 (2006) (internal quotations omitted).
Under that standard, plaintiff's factual allegations rise to the level of a materially adverse employment action. The allegation that the union defendants cooperated with the state defendants to cause a New York State Trooper to arrive at plaintiff's home and order him to report to defendant Jones distinguishes his claim from "those petty slights or minor annoyances that often take place at work and that all employees experience." Id. A police officer's visit to one's residence is a serious matter and confers a high level of intimidation through the impression that law enforcement officials will support the supposedly retaliatory party in the event of further conflict. At the very least, a reasonable fact finder could determine that the visit by the Trooper would dissuade a reasonable employee from making additional charges of discrimination.
Plaintiff also pleads sufficient facts to establish a causal connection between his internal complaint of racial discrimination and the adverse employment actions. In light of his allegation that the union defendants' stance with respect to his internal grievance changed within the span of a week after they met behind closed doors with the state defendants, there is a factual basis for concluding that the union defendants acted to help further the state defendants' retaliatory motive in response to plaintiff's filing of an internal complaint of racial discrimination. ...