The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Dona Pratesi ("Plaintiff') commenced this action against Defendants New York State Unified Court System ("NYSUCS"), Ken Roll ("Roll"), and Judge Anthony Marano ("Marano")*fn1 alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. § 1983; and N. Y. Exec. Law § 290 et seq. ("Human Rights Law"). Presently before the Court are motions by the defendants to dismiss the amended complaint. For the reason set forth below, the motions are granted in part and denied in part.
The following allegations are taken from the amended complaint ("AC") and presumed true for purposes of this motion to the extent they are factual and not conclusory.
Roll is the Chief Clerk of the NYSUCS's district courts and as such is responsible for, inter alia, the hiring, firing, promotion, and discipline of employees. Marano is the supervising Judge for the Nassau County District of the NYSUCS and as such is responsible for the hiring, firing, promotion, and discipline of employees. (AC ¶¶ 7-8.)
Plaintiff is a woman of same sex orientation and in 1983 began working for the NYSUCS as a Court Assistant, grade 16. In 1986 she interviewed for the position of Deputy Commissioner Jurors, grade 23. Although she was told she was the most qualified applicant and would get the job, Commissioner Tom DeVivo hired the supervising judge's secretary for the job. (AC ¶¶ 9-10.)
In 1988, while at a professional conference, two male clerks told jokes relating to those of same-sex orientation, in the presence of Plaintiff, who was know to be of same-sex orientation. Also that year, Plaintiff was put under the supervision of Eileen Bianchi, who began harassing Plaintiff and spread a false rumor that Plaintiff slashed her tires because she (Bianchi) had rejected Plaintiff's sexual overtures. Plaintiff was thereafter transferred from Nassau County Court to Nassau County District Court. Immediately thereafter, it was circulated around the District Court that Plaintiff was gay. (AC ¶¶ 11-14.)
In 1991, Plaintiff was promoted to Senior Court Clerk, grade 21. She was again promoted in 1998 to an Associate Court Clerk, grade 23, and put in charge of the 4th District Court in Hicksville, New York. (AC ¶ 15.) In October 2000, Plaintiff was "promoted, yet again - this time to Principle Court Clerk, grade 26. She was hired to replace the grade 26 clerk in charge of the civil office in the 1st District . . . a prestigious and desirable position. Despite receiving the promotion . . . Plaintiff was never moved to the 1st District. Rather, a criminal court clerk was in put in charge of the civil office . . . ." (Id. ¶ 16, 17.)
In early 2001, Plaintiff, while disciplining a lower grade employee for insubordination, was called into Roll's office. Roll at that time was Deputy Chief Clerk, and he told Plaintiff that the women in the office downstairs were afraid of her and told her she "comes across a little rough." Because he perceived Plaintiff, as a gay female, not be to be feminine enough, Roll directed her to cease going downstairs and to send another clerk, even those of a lower grade, to go instead. (AC ¶¶ 18-19.)
Plaintiff applied for the position of Deputy Chief Clerk in County Court in October 2001. At that time she was a grade 26 clerk but did not get the position. Instead, a lesser qualified male employee who was a grade 18 court officer, with no administrative or legal experience, was hired. (AC ¶ 20.)
In the beginning of 2003, a meeting was held in the Chief Clerk's office between Roll and two Principal Court Clerks, Benganskas and Shimonsky, to discuss the possibility of Plaintiff coming to the court as Deputy Chief Clerk. Shimonsky was overhead by another clerk as saying, "What is she going to do, come in and paint the office pink?" (AC ¶ 21.)
In May 2003, Plaintiff applied for a Court Clerk Specialist position in Nassau County Supreme Court. The position required a grade 26 or higher or a law degree, plus three years experience. Plaintiff, who had been a grade 26 for three years, was denied the position and it was given to a male who had never achieved more than a grade 21 position. (AC ¶ 22.)
Plaintiff then applied for a Senior Management Analyst position in September 2003. The position was given to a less qualified grade 21 clerk who was bumped to a grade 25 and then a grade 28 in order to qualify for the job. (AC ¶ 23.)
In February 2004, Plaintiff applied for the position of Deputy Chief Clerk in District Court, where she had previously worked for seventeen years directly under the then recently retired Deputy in charge of the Civil Department. The position was given to a lesser qualified grade 26 male, even though he had only two years of experience in District Court. (AC ¶ 24.)
In June 2005, Plaintiff was removed from her position as Clerk of the 3rd District, where she had been working since the close of the 4th District, and was transferred to the 1st District in Hempstead where she was given a job with no supervisory responsibility which was previously held by a grade 23 employee. When Plaintiff inquired why she was not being given a department head position when she had the credentials for one and was being stripped of supervisor responsibilities, she was told by Roll that the court system was "making changes." According to Plaintiff the action was taken because of her gender and/or sexual orientation. (AC ¶¶ 25-26.)
After years of "discriminatory denials of transfers and promotions, Plaintiff filed a complaint with the Inspector General" ("IG"). As a result of her filing, she was called into the office of Marano, Supervising Judge for the Nassau County District of the NYSUCS. Marano asked Plaintiff if she would consider transferring to the Matrimonial Center. When Plaintiff explained that such a transfer could cause her to lose six to seven thousand dollars in overtime, Marano responded that he had the power to transfer her anywhere in Nassau County. Perceiving this to be a threat that she would be transferred somewhere less desirable if she did not agree to go, Plaintiff was "coerced" into "accept[ing] this retaliatory transfer." She was subsequently contacted by the IG who informed her that in light of her transfer, they considered her case settled. (AC ¶¶ 27-28.)
In January 2008, Plaintiff applied for the position of Court Clerk Specialist. The position was given to an unqualified male clerk who was bumped from a grade 21 to a grade 25 and then to a grade 28. It is claimed that the "[unspecified] Defendant went so far as to change the job description on that position so that the lesser qualified male could be considered" and "awarded the position over Plaintiff." (AC ¶¶ 29- 30.)
On or about January 8, 2008, Plaintiff applied for two Deputy Chief Clerk positions. In the interview she noted that although 65% of NYSUCS's the workforce in the Nassau County is female, only approximately 20% of positions grade 28 and above are awarded to females and all grade 30 positions are held by men. On her application form, Plaintiff checked off that she had minority status as she is 25% Spanish. After seeing this another candidate for the position stood up and loudly asked, "If I say I'm gay too, can I get a promotion?" Plaintiff was denied both positions in favor of lesser qualified employees "outside her protected class." According to Plaintiff, despite her over twenty-five years experience, she is continually denied promotions and job positions to which she is entitled due to her gender and sexual orientation and/or in retaliation for her complaints of discrimination. (AC ¶¶ 31-33.)
Plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR") on April 11, 2008, which was cross-filed with the EEOC. On November 14, 2008, the EEOC issued a right to sue letter.
Plaintiff filed her complaint in the instant action on December 1, 2008. Plaintiff asserts the following claims: (1) a Title VII claim against NYSUCS for hostile work environment, discrimination and retaliation based on her gender, and/or opposition to discriminatory practices; (2) claims under the New York State Human Right Law against NYSUCS for hostile work environment, discrimination and retaliation based on her gender, sexual orientation, and/or opposition to discriminatory practices and against Roll and Marano for aiding, abetting, and participating in said conduct: and (3) a claim against NYSUCS, Roll, and Marano under § 1983 for injunctive relief for alleged violation of her Fourteenth Amendment rights.
I. Motion to Dismiss Standard
Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).
First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 550 U.S. at 562.
Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is ...