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Fox v. County of Yates

November 12, 2010


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff, Patricia A. Fox ("Plaintiff"), brings this action pursuant to 42 U.S.C. §1983, 42 U.S.C. §1985, 42 U.S.C. §1981, and 42 U.S.C. §1986 alleging malicious prosecution, conspiracy, violations of the Due Process and Equal Protection Clauses, witness intimidation and various state law claims arising out of her employment by Defendant, the County of Yates ("County") and the criminal indictment, prosecution and administrative hearing for allegedly falsifying her time cards*fn1 . Plaintiff claims that Defendants, the County, Sheriff Ronald Spike ("Spike"), UnderSheriff John Gleason ("Gleason"), and Lieutenant Clay Rugar ("Rugar"), violated her Constitutional rights in retaliation for her reporting the inappropriate conduct of several co-workers to her superiors. Plaintiff also alleges that Defendants violated the Equal Protection clause by discriminating against her and other female corrections officers in work assignments and promotion. Defendants move to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"). For the reasons set forth below, this Court grants in part and denies in part Defendants' motion to dismiss.


The following facts are set forth in the Complaint.*fn2

Plaintiff served as a probationary corrections officer for the Yates County Sheriff's Department ("YCSD") from 2002 to July 4, 2004, when she was permanently appointed under the New York Civil Service Law ("CSL"). In 2005, Plaintiff reported that Vicodin was missing from her personal belongings stored in a break room. An investigation led to the firing of a fellow corrections officer for taking the Vicodin. Soon thereafter, Plaintiff reported to her supervisor that certain corrections officers were engaging in sexual acts and accessing pornographic websites while at work. Plaintiff alleges that she was subject to harassment for having reported such conduct, and in 2006 she reported this harassment to her supervisor, Rugar. Plaintiff alleges that Rugar did not investigate her report, but Rugar later informed Plaintiff that there was no evidence of such conduct. Plaintiff then provided Rugar and Gleason with her own documentation of the harassment. Plaintiff alleges that Rugar and Gleason advised her that they would keep her report confidential, but they subsequently revealed to other employees at the YCSD the substance of Plaintiff's complaints. Plaintiff alleges that she was subject to continued harassment after being identified as the complainant.

Plaintiff alleges that the harassment she suffered was in retaliation for her reports to her supervisors and that this retaliation stemmed from a specific group of male employees of the County who are known as the "Circle," which included, among others, Rugar, Gleason and Spike. She claims that members of the Circle are not asked to perform unwanted tasks and are generally given favorable treatment over female corrections officers. She claims that members of the Circle would decide what tasks to assign female employees and whether female employees would be granted promotions or pay increases.

Plaintiff states that while she was employed by YCSD she was often asked to work overtime. The YCSD had an internal policy regarding overtime whereby an employee was required to have such overtime approved, even if it had already been earned. Plaintiff states that on four separate occasions in the Fall of 2007 she worked one half-hour of overtime and failed to get approval for such overtime. She states, however, that this overtime was correctly logged on her time card and that Defendants knew that Plaintiff completed the overtime, even though it had not been formally approved. Plaintiff was paid $54.30 for the overtime.

The YCSD began an investigation into Plaintiff's receipt of monies for overtime that they claimed was not due, as it had not been approved. YCSD later filed a criminal complaint alleging that Plaintiff falsified a business record (her timecard) and committed petit larceny based on her receipt of monies related to the allegedly falsified timecard. Plaintiff was subsequently arrested and, while being fingerprinted, Rugar told her that if she resigned she may receive a more favorable disposition of her criminal charges. Plaintiff was then suspended from the YCSD.

Plaintiff appeared and testified before a Yates County Grand Jury and was subsequently indicted. Plaintiff claims that an electronic recording made by criminal investigators of the County, Lieutenants Sortir and Backer, during their investigation of her alleged offense, was improperly withheld from the Grand Jury as the tape contained her own corroborating statements that she had worked the overtime reflected in her time card. She also alleges that Sortir and Backer, who testified at the Grand Jury, gave false testimony to the Grand Jury because they did not inform the Grand Jury of the existence of the recording and incorrectly stated why the Plaintiff would not sign a written statement about the investigation. She also states that they gave false testimony as to the procedure for earning and approving overtime at the YCSD. Plaintiff was tried and acquitted of all charges.

Plaintiff was suspended, without pay, from January 22, 2008 through the completion of a subsequent CSL §75 proceeding, on July 2, 2009, which was brought by the YCSD following the completion of the criminal trial. YCSD alleged 6 charges in the CSL §75 proceeding based on Plaintiff allegedly receiving monies for overtime which she did not work. Plaintiff testified at the hearing and was represented by counsel. The Hearing Officer found that Plaintiff should be subject to sanctions for some, but not all, of the YCSD's allegations.*fn3 The Hearing Officer recommended that Sheriff Spike suspend Plaintiff for 30 days, without pay, and that Plaintiff should not be granted back pay for the period of time when she had asked for and was granted an adjournment of the hearing. Spike, finding that Plaintiff had violated agency policy according to the Hearing Officer's determination, suspended Plaintiff for 60 days without pay and denied her back pay. He also denied her credit for the time she had already been suspended without pay.

Plaintiff then sought review of Sheriff Spike's decision pursuant to CSL §76. The reviewing Personnel Officer found that the Hearing Officer and Spike correctly determined that Plaintiff had violated agency policy. He determined that the ultimate penalty imposed by Spike was proportionate to the offense. The Personnel Officer also found that Plaintiff was not entitled to back pay for the period of time that the hearing delay was due to her own actions, (January 22, 2008-January 29, 2009) because she had asked for a postponement, but that Plaintiff was entitled to back pay for the amount of time that exceeded the statutory 30-day period of suspension under the CSL (January 29, 2009 through July 2, 2009), because she had not delayed the proceedings after the hearing was scheduled.


To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (quoting Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1974 (2007)). In considering a Rule 12(b)(6) motion to dismiss, the Court "'must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.'" See Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008) (quoting Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir.2007)). The "plausibility" language used by the Supreme Court in Bell Atlantic has not been interpreted by the Second Circuit to require a "universal standard of heightened fact pleading," but to require a complaint to "amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (emphasis in original). Further, courts have noted that while heightened factual pleading is not the new order of the day, Bell Atlantic holds that a "formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Williams v. Berkshire Fin. Grp. Inc., 491 F.Supp.2d 320, 324 (E.D.N.Y.2007), quoting, Bell Atlantic Corp., 127 S.Ct. at 1959. However, the court may disregard a plaintiff's "legal conclusions, deductions or opinions couched as factual allegations." See, e.g., In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007) (citation omitted). The court is also not required to credit conclusory statements unsupported by factual allegations. See, e.g., Otor, S.A. v. Credit Lyonnais, S.A., 2006 WL 2613775, at *2 (S.D.N.Y.2006); see also Davey v. Jones, 2007 WL 1378428, at *2 (S.D.N.Y.2007) (citation omitted) ("[B]ald contentions, unsupported characterizations, and legal conclusions are not well-pleaded allegations, and will not suffice to defeat a motion to dismiss.").

Plaintiff alleges thirteen enumerated causes of action based on the facts outlined above. Several of Plaintiff's claims are dismissed as a matter of law at the outset, as Plaintiff has failed to allege a credible basis in either law or fact to support such claims.

A. Plaintiff's Claims Under 42 U.S.C. §§ 1981, 1985 and 1986

The majority of Plaintiff's claims rest in her assertion that she was subject to retaliation for being a whistleblower and that certain employees of the YCSD, the "Circle," sought to have her removed from duty by falsely accusing her and maliciously prosecuting her for a crime. Defendant argues, and this Court agrees, that Plaintiff's cause of action for malicious prosecution under 42 U.S.C. §1981 should be dismissed with prejudice because she has failed to allege racial discrimination. See Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087-8 (2d Cir. 1993)("To establish a claim under ยง 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute."). Similarly, Plaintiff's claim for conspiracy under 42 U.S.C. ...

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