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Leo Smith, Jr., Benjamin Cannon, Jr., and John Christopher Smith v. Town of Hempstead Department of Sanitation Sanitary District

July 19, 2011


The opinion of the court was delivered by: Spatt, District Judge.



In this civil rights case, the plaintiffs allege that the defendants created a hostile work environment in the plaintiffs' workplace, and then retaliated against the plaintiffs for formally complaining about the presence of the hostile work environment. All of the defendants have now moved for summary judgment dismissing all of the plaintiffs' causes of action. For the reasons that follow, the Court grants the defendant John Beyer's motion for summary judgment in full, and grants in part and denies in part the remaining defendants' motions for summary judgment.


This case, like another case pending before the Court, Alexandre v. Town of Hempstead, No. 09-cv-1269, --- F. Supp. 2d ----, 2011 WL 2181461 (E.D.N.Y. Jun. 4, 2011), stems from the April 19, 2007 hanging of a noose in the employee area of the Town of Hempstead Department of Sanitation Sanitary District No. 2 (the "Sanitary District"). Each of the three plaintiffs, Leo Smith, Jr., Benjamin G. Cannon, Jr., and John Christopher Smith, was an employee of the Sanitary District as of April 19, 2007, and remains employed there today. All three are African-American. The plaintiffs name as defendants in this case the Sanitary District; its Board of Commissioners; Robert Noble, secretary to the Board of Commissioners; Michael McDermott, the general manager for the Sanitary District; Nicholas Dionisio (identified incorrectly as Nicholas Diniccio in the plaintiffs' complaint), a mid-level supervisor at the Sanitary District; and John Beyer, a co-worker of the plaintiffs at the Sanitary District.

The following facts in this case are generally not disputed:

On Thursday, April 19, 2007 at about 6:00 a.m., the plaintiffs Leo Smith and John Smith arrived for work at the central garage for the Sanitary District. When they entered the garage, they found a rope tied into a noose hanging on the wall in an area where workers regularly gathered. A number of other Sanitary District employees, both white and black, also witnessed the noose. The third named plaintiff, Benjamin Cannon, did not see the noose himself, but heard about the event shortly thereafter. Also, at some time before or after the plaintiffs arrived, the defendant Nicholas Dionisio, a Caucasian mid-level supervisor, saw the noose, but neither reported it nor removed it.

Seeing the noose and feeling offended, the plaintiff John Smith removed it from the wall, and brought it to a mid-level manager named John Pugliese, Sr. In turn, Pugliese brought the noose to the defendant Michael McDermott, his superior at the Sanitary District. McDermott stored the noose under his desk, and proceeded to call a meeting of all personnel at the Sanitary District before they left the garage that morning on their garbage collection routes. At that meeting, McDermott told the workers, in substance, that the hanging of the noose might have been acceptable or funny ten years ago, but that it was not acceptable today. McDermott offered an opportunity for anyone to comment on the subject of the noose-an opportunity that was apparently declined-and he then dismissed the workers from the meeting. McDermott then contacted a number of other individuals, including the Defendant Robert Noble, to discuss the incident, and commenced an investigation into the morning's events. The Sanitary District workers, including the plaintiffs, completed their normal duties that day, although the plaintiffs state that they were very upset by both the noose and McDermott's comments.

The following Monday, which was April 23, 2007, the defendant John Beyer came to meet with McDermott about 11:00 a.m. Beyer told McDermott that he had hung the noose in the work area, and that he had done so not to express racial animus, but rather as part of a joke with a co-worker about how the benefits that the Sanitary District workers received were insufficient. Significantly, Beyer also told McDermott, either at this meeting or at a subsequent meeting, that he had hung up the noose for only three to four minutes and then had taken it down, and that he believed that no African-American workers had seen the noose while he had it hung.

On Tuesday, April 24, McDermott permitted Beyer to address all of the sanitation workers at a general meeting, at which time Beyer apologized to the group for his part in the hanging of the noose. He also later apologized to each of the plaintiffs individually. For his actions concerning the noose, Beyer received a verbal reprimand, and was told that he would have a written reprimand placed in his file indicating that any subsequent similar event would result in his termination. Whether the written reprimand was actually issued is in some dispute.

According to Beyer, he had found the noose in the rear of a garbage truck, and had thrown it back in a truck after hanging it on the wall. However, in spite of the fact that Beyer's statement may have lead to the impression that someone else had re-hung the noose after Beyer removed it, it is not clear that substantial further investigation of the event took place. Thus, on May 3, 2007, the plaintiffs wrote a letter to the defendant Robert Noble, the secretary to the Board of Commissioners, stating their disappointment with the Sanitary District's response to the incident. Based on the plaintiffs' letter, Noble took over the investigation of the incident from McDermott, and also reprimanded McDermott for his statement that hanging a noose might have been acceptable ten years ago.

Noble's subsequent investigation into the incident lasted approximately another two months. However, few additional individuals in addition to the plaintiffs and the managers involved were interviewed. As for the noose itself, McDermott had discarded it before any additional examination could be performed on it. Ultimately, no additional punishment was rendered to John Beyer, and no other individuals were implicated in the hanging of the noose. No further meetings of the Sanitary District workers were held concerning the incident, and no additional training was provided to the personnel.

On June 22, 2007, July 11, 2007, and July 13, 2007, Leo Smith, Benjamin Cannon, and John Smith each respectively filed a complaint with the New York State Division of Human Rights and the Equal Employment Opportunity Commission ("EEOC") concerning the hanging of the noose and the response by the Sanitary District. Each of the three stated, in their own language, that the hanging of the noose was offensive, and that they felt that their employer had inadequately addressed the event. The EEOC ultimately issued Notices of Right to Sue regarding each of these three complaints.

Based on these basic facts, the plaintiffs ultimately asserted various federal and state causes of action against the defendants, alleging that the defendants had created a hostile work environment. In addition, the plaintiffs asserted retaliation claims against the defendants, based on a further set of facts:

First, the plaintiff Leo Smith alleges that the defendants retaliated against him approximately three and a half months after he filed his EEOC complaint by wrongfully suspending him from driving a garbage truck for two weeks. However, he was given full pay during the suspension. Leo Smith allegedly received this suspension for missing a mandatory safety meeting. During his two-week suspension he did not drive a garbage truck, but rather worked on the back of the truck, helping to load garbage at each residential stop. Leo Smith does not deny that it may be his employer's nominal policy to suspend drivers who miss safety meetings, but asserts that this policy was generally not enforced, and that it was enforced against him only because of his EEOC complaint.

Next, the plaintiff John Smith states that the defendants retaliated against him on June 24, 2008, approximately eleven months following his EEOC complaint. On that date, John Smith was suspended without pay by the defendant Nicholas Dioniso following an incident at 417 Woodland Road, South Hempstead, New York. The parties agree that on that morning, John Smith was working on a garbage truck that picked up garbage at 417 Woodland Road. Shortly after John Smith's garbage truck collected garbage from that address, the owner of the property called John Smith's supervisor, Nicholas Dioniso, to complain that John Smith had not returned his garbage cans to the side of his driveway, as he was supposed to do. Dioniso drove to 417 Woodland Road, and called John Smith's truck back there, as well. When John Smith returned to the residence, the resident's garbage cans were in the middle of the home's driveway, as was the owner of the home. Dioniso twice directed John Smith to move the garbage cans to the side of the driveway, and John Smith twice refused to do so. John Smith stated that he had properly placed the garbage cans at the side of the driveway when he earlier collected garbage at that address-a contention that was later corroborated by the other two individuals working on John Smith's garbage truck. Dioniso then suspended John Smith without pay for insubordination.

Finally, the plaintiff Benjamin Cannon asserts that his retaliation occurred on or about August 12, 2008, approximately thirteen months after he filed his EEOC complaint. By way of background, Cannon had lost his commercial driver's license sometime in May 2007, after being convicted of speeding and driving while intoxicated. Sanitary District drivers are required to hold a commercial driver's license to drive a garbage truck, and as a result of losing his license, Cannon was assigned to work on the back of a garbage truck rather than to drive a truck. However, in August of 2008, Cannon's license was reinstated, and he therefore applied to be restored as a garbage truck driver. The Sanitary District initially indicated that it would consider this request, but on August 11, 2008, the insurance broker for the Sanitary District issued a letter recommending that Cannon not be permitted to drive for another two years. The Sanitary District accepted this recommendation, and denied Cannon's request for reinstatement. However, the Sanitary District did elect to pay Cannon the salary received by sanitation drivers.

On August 28, 2008, following all of these events, the plaintiffs commenced the present action. After amending their complaint by right on December 12, 2008, the plaintiffs asserted causes of action against the Sanitary District and its Board of Commissioners for: (1) hostile work environment and retaliation in violation of Title VII, 42 U.S.C. § 2000e; (2) hostile work environment and retaliation in violation of the Fourteenth and First Amendments of the United States Constitution, pursuant to 42 U.S.C. § 1983; and (3) Monell liability with regard to the municipal defendant pursuant to 42 U.S.C. § 1983. Against all of the defendants, the plaintiffs assert causes of action for (1) hostile work environment in violation of 42 U.S.C. § 1981; (2) conspiracy to create a hostile work environment and to retaliate, pursuant to 42 U.S.C. § 1985; and (3) hostile work environment and retaliation, in violation of New York State's Human Rights Law, New York State Executive Law § 296.

As an aside, the Court notes that the complaint is unclear as to whether the plaintiffs intend to interpose separate claims against the Town of Hempstead. To the extent that the plaintiffs seek to do so, those claims are treated as duplicative of their claims against the Sanitary District, which is a department of the town. Similarly, the plaintiffs' claims against the members of the Board of Commissioners in their official capacities are treated as identical to the plaintiffs' claims against the Sanitary District. See, e.g., Tsotesi v. Bd. of Educ., 258 F. Supp. 2d 336, 338 n. 10 (S.D.N.Y. 2003). Further, the complaint does not appear to assert any Section 1983 claims against any of the defendants in their individual capacities, and the Court therefore treats the complaint as not doing so. However, to the extent that the complaint does assert such causes of action, they would be analyzed in the same manner that the Court has analyzed the plaintiffs' various Section 1981 causes of action.

On December 23, 2010, the defendant John Beyer, who is represented separately from the remainder of the defendants, filed a motion for summary judgment dismissing all of the plaintiffs' claims against him. On December 24, 2010, the remaining defendants also moved collectively for summary judgment dismissing all of the plaintiffs' claims. Both motions are opposed.


A. Legal Standard on a Motion for Summary Judgment

It is well-settled that summary judgment under Fed. R. Civ. P. 56(c) is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" within the meaning of Fed. R. Civ. P. 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).

Once the moving party has met its burden, "the nonmoving party must come forward with ‗specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). However, the nonmoving party cannot survive summary judgment by casting mere "metaphysical doubt" upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586. Summary judgment is appropriate when the moving party can show that "little or no evidence may be found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223--24 (2d Cir. 1994) (citations omitted).

B. As to the Plaintiffs' Hostile Work Environment Claims

All of the plaintiffs' causes of action rely in part on allegations that the defendants injured the plaintiffs by causing or perpetuating a hostile work environment at the Sanitary District. The Court therefore begins by addressing the hostile work environment element of the plaintiffs' claims.

1.The Presence of a Hostile Work Environment

The standard for showing a hostile work environment under Title VII, Section 1981, Section 1983, and the New York State Human Rights Law is essentially the same. See Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 609 (2d Cir. 2006); Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004). In general, to prevail on a hostile work environment claim, a plaintiff must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal quotations omitted). In addition, to succeed on a Title VII or New York State Human Rights Law hostile work environment claim against an employer, the plaintiff must show that "a specific basis exists for imputing the conduct that created the hostile environment to the employer". Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004) (internal quotations omitted). Similarly, to prevail on a Section 1981 or 1983 hostile work environment claim against a municipal employer, a plaintiff must show that the harassment derived from a municipal policy or practice. Patterson, 375 F.3d at 226. While single incidents of harassment generally do not create ...

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