The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This suit arises out of claims made by the Plaintiff, James B. Conklin, that he was sexually harassed by the Defendant Denise A. Wilson while an employee of the Suffolk County Board of Elections. In addition, Conklin claims that when he complained of this harassment, the Defendants the County of Suffolk, the Suffolk CountyBoard of Elections, and Cathy L. Richter Geier (collectively, the "County Defendants"), as well as the Defendant Jesse Garcia, retaliated against him. Three separate motions for summary judgment have been filed by the Defendants. For the reasons set forth below, the Court grants the motions filed by individual Defendants Denise A. Wilson and Jesse Garcia, and grants in part and denies in part the motion filed by the County Defendants.
The Defendant Denise A. Wilson ("Wilson") began her employment with the Defendant the Suffolk County Board of Elections ("BOE") in the Processing Department in or about November 2005. The Plaintiff James B. Conklin ("the Plaintiff" or "Conklin") began his employment with the BOE as an Election Clerk in the Data Department on February 14, 2006. Wilson and Conklin became romantically involved prior to the time that the Plaintiff began his employment at the BOE. During the course of their relationship, the Plaintiff was married to another woman. It is undisputed that Wilson and Conklin were only co-workers and that Wilson was not Conklin's supervisor, nor did she have the right to fire, hire, discipline, or control his work schedules or assignments. (Cty. Def.'s 56.1, at ¶ 3; Def. Wilson 56.1, at ¶ 3--4.)
It is not entirely clear when the relationship between Wilson and Conklin actually concluded. The Plaintiff purportedly terminated his relationship with Wilson in June 2007. However, Conklin acknowledged that he was still in love with Wilson for several months after this break up, until at least as late as November 2007. In this regard, in the beginning of November 2007, Conklin gave Wilson a card that said "I love you!" and was signed "Love, Jim" with an "X" and "O". (Cty. Def.'s 56.1, at ¶ 146.) Also, Mary MacConnell, the Plaintiff's social worker and therapist, testified about a visit with Conklin on September 10, 2007, as follows:
A: Again, there was a never a total breakup. He worked with her. Q: In the next line [of your progress notes] you say he has obsessive thoughts?
Q: And he feels she may be with another man.
Q: "He monitors her activities, calls frequently when not at work and tries to date her."
A: Yes. He loved her. He loved her. Obsessive you think about it and think about it, could she have someone, could she have someone. Again, because of the fact that it wasn't totally ended, the hopefulness was there that it could be rekindled. (MacConnell Dep., at 28-29.)
It appears that Wilson and Conklin had quite a tumultuous relationship, which manifested itself in various incidents both inside and outside of the workplace. Prior to November 7, 2007, the Plaintiff did not subjectively perceive Wilson's behavior or comments as harassing because, according to him, they were still friends at the time. (Conklin Dep., at 368.) However, an incident that took place on November 7, 2007 outside of the workplace demarcated a change in the Plaintiff's interpretation of Wilson's behavior.
On the evening of November 7, 2007, the Plaintiff approached the home of Donald Pipe, who was a friend and arguably a romantic interest of Wilson. According to Wilson, she was sitting on the couch with Pipe when she heard Conklin shouting and banging on the window. According to Conklin, he only peeked through the window and in doing so, saw illegal drugs strewn about the home. Wilson waited until she believed Conklin was gone from the home, and then left Pipe's residence and began to drive home. Soon thereafter, she noticed that the Plaintiff was following her automobile. Conklin admits that he followed Wilson's car from Patchogue to Bellport, which is the opposite direction from his home. However, he claims that he was following Wilson because she was swerving and he was worried about her safety, especially in light of the drugs he saw at Pipe's residence. Eventually, Wilson pulled into an empty gas station to allegedly get away from Conklin. However, the Plaintiff blocked Wilson's automobile, and in her attempt to escape, Conklin caused her to crash her car into a post at the gas station. The police subsequently arrested the Plaintiff and charged him with two crimes: harassment and reckless endangerment. After this incident, Conklin claims that he received angry and threatening messages from Pipe. Conklin reported these threats to the authorities, which led to Conklin's receipt of an order of protection against Pipe on November 13, 2007.
According to the Plaintiff, from November 7, 2007 onward, he no longer wanted anything to do with Wilson. (See Pl. Opp. Mem., at 4 ("On November 7, 2007, Conklin's friendship and overall rapport with Wilson began to deteriorate quickly").) After this point in time, Conklin began to subjectively perceive Wilson's behavior and comments as harassing and thus, on numerous occasions, he began to make complaints that Wilson was bothering him. The County Defendants acknowledge that the "harassment" Conklin began to complain about consisted of Wilson using a copy machine in Conklin's work area in the Data Department; putting her lunch in the refrigerator in Conklin's work area; using a phone in Conklin's work area; and returning things to him after their relationship was over. (Cty. Def.'s 56.1., at ¶ 140.)
In addition, Conklin alleges that Wilson's harassment also included frequent use of the water cooler in his area; intentional use of his desk to read her newspaper; leaving unnecessary notes for him at his workspace; and making passing, derogatory comments to him about his wife. (Pl. 56.1, at ¶ 140.) Furthermore, while walking outside the BOE building, Conklin alleges that Wilson yelled at him and hit him. However, Wilson never touched the Plaintiff in an inappropriate way in the workplace, and never made any physical sexual advances toward him at the BOE. (Pl. 56.1, at ¶ 206.) Moreover, Conklin has acknowledged that part of what formed his belief that he was being sexually harassed by Wilson was "because many of the times she would say stuff to me about the relationship and starting it up again, and that's sexual harassment." (Conklin Dep., at 176:7-11.)
On the other hand, Wilson testified that she had alternative reasons for her behavior and that she did not intend to harass the Plaintiff. In general, Wilson characterizes the office environment as "fluid"; she asserts that while there are different departments, people moved around frequently and work space and resources were often shared. (Wilson Mem. at 4.) For example, Wilson claims she used the refrigerator in the data department because it was close to her desk and everyone else used it too; she used the water cooler in the data department because she contributed money for the water supply; she used the copy machine in the data department because she did not have one in the processing department where she worked; and she used the phones in the data department because the phones in her department only dialed internal County numbers. (Wilson Dep., at 136-39.) In addition, Wilson obtained an Order of Protection against the Plaintiff on November 20, 2007, because "he ran [her] off the road, I had enough of the stalking, the violence and the erratic behavior." (Wilson Dep., at 100.) In particular, Wilson testified that she was in "fear for her life" based upon Conklin's actions on November 7, 2007.
The Plaintiff complained about Wilson's behavior to Keith Tuthill, BOE's Director of Operations, and Wayne Rogers, Deputy Commissioner. As a result, Tuthill and Rogers told Wilson not to go into Conklin's workspace in the Data Department. In addition, the Plaintiff observed Tuthill speak to Wilson on at least two occasions in November 2007. (Cty. Def.'s 56.1, at ¶ 170.) However, according to Conklin, Wilson repeatedly violated this prohibition, and the BOE never instituted progressive discipline against Wilson for her infractions. (Pl. 56.1, at ¶ 175.) Thus, Conklin contends that his complaints were not addressed reasonably and/or satisfactorily by the Defendants.
The Plaintiff also alleges that after the November 7, 2007 incident, he also reported Wilson's conduct to the Defendant Jesse Garcia. Garcia works at the BOE as the Republican Hispanic Outreach Coordinator and also, according to Conklin, as the Republican "Election Administrator". (Def. Wilson 56.1, at ¶ 7.) Garcia denies that he served in a supervisory position at the BOE, and testified that he has nobody who reports to him there. However, the Plaintiff contends that "Garcia is (in reality) third in the BOE hierarchy, after only the Republican Commissioner and Deputy Commissioner." (Pl. 56.1, at ¶ 7.) In addition, the Plaintiff asserts that as a political leader with the County generally, Garcia has broad powers within the BOE, such as the decisions as to promotions; controlling BOE workers' terms and conditions of employment; and countermanding and canceling personnel actions ordered by the Commissioner such as transfers and terminations. (Pl. 56.1 at ¶ 7.) After Conklin spoke to Garcia about Wilson's behavior, Conklin claims that Garcia loudly berated him for his decision to complain about Wilson's harassment and allegedly told Conklin that there would be consequences if he continued to pursue his sexual harassment claim against her.
On February 29, 2008, the Plaintiff made a request for information on how to file a complaint of sexual harassment to Betty Manzella, the Republican BOE's sexual harassment officer. On March 6, 2008, Manzella responded to the Plaintiff's request. On or about May 15, 2008, the Plaintiff submitted a complaint to Manzella, who then contacted the Democratic sexual harassment officer, Jeanne O'Rourke. On May 19, 2008, Manzella and O'Rourke ("the sexual harassment officers") met with Conklin to explain the process of filing a complaint of sexual harassment. In late May or early June 2008, the BOE interviewed the Plaintiff, which the County Defendants claim was the start of its internal investigation into Conklin's complaints. The Plaintiff disputes whether the sexual harassment officers ever conducted anything that resembled a true "investigation" of his claims. The BOE disagrees, claiming that it conducted a full investigation, including that the sexual harassment officers met with Wilson twice in relation to the complaint that Conklin filed against her.
There is no dispute that during the investigation in April 2008, the Plaintiff was directed by Defendant Geier to move out of the Data Department to a different position in the warehouse area. The Plaintiff worked in the warehouse for a total of approximately three months, from May to August of 2008. The reason for this reassignment is disputed by the parties. The County Defendants assert that Conklin was directed to move as a result of a complaint filed by a nonBOE employee named Amy Connelly. Allegedly, Connelly complained to the BOE that Conklin had retrieved her address from the BOE database - specifically, voter registration information - and went to her home to confront her husband John Connelly about his prior involvement with Wilson. (Cty. Def.'s 56.1, at ¶ 227-29.) The Defendants based this conclusion upon a computer query that was made into the voter records that they believed was "evidence" of Conklin's alleged computer misuse. Thus, it is asserted that Conklin was moved to the warehouse because the BOE did not want him to have further access to a computer. (Cty. Def.'s 56.1, ¶ 241.) However, other BOE employees such as Tuthill and Ellis testified that Conklin's move was attributable to his attendance record. (Tuthill Dep. at 25; Ellis Dep. at 27:9-25, 28:2-4.) In addition, the Plaintiff's supervisor when he was assigned to the Data Department, the Defendant Geier, testified that she was displeased with Collins' work performance, specifically his attendance, prior to his being moved to the warehouse in 2008. (Geier Dep. at 84:14-25; 85, 86:2-5.)
The Plaintiff disputes the Defendants' alleged proof of his computer misuse, arguing that the computer query was generated one month after his relocation to the warehouse and precisely one day after he filed his formal complaint of sexual harassment. Moreover, the Plaintiff vehemently disputes that the transfer to the warehouse was triggered by Connelly's complaint, and instead asserts that the move was caused by his prior complaints regarding Wilson's harassment. (Pl. 56.1, at ¶ 229.) In this regard, the Plaintiff contends that if the decision to move him to the warehouse was motivated solely by the desire to eliminate his access to a computer, then there was no reason to begin monitoring his whereabouts in the warehouse once he was transferred. (Pl. 56.1, at ¶ 211.) In addition, the Plaintiff asserts that his attendance was not a legitimate reason for the move, because his attendance at that time was substantially similar to his prior attendance record at the BOE. (Pl. 56.1, at ¶ 210.)
Moreover, the parties dispute the characterization of this reassignment. The County Defendants categorize it as "in the nature of a transfer, not a demotion." (Cty. Def.'s 56.1, at ¶ 238.) However, the Plaintiff asserts that it did constitute a demotion, because he was moved to an area that primarily involved blue collar work, entailed a significant loss of prestige and status, and was also inconsistent with his prior experience and professional background. (Pl. 56.1, at ¶ 238.) Conklin acknowledges that Wilson no longer harassed him in his workspace after he was moved to the warehouse, although she allegedly continued to bother him in other locations in the BOE building, such as to making comments in the hallways designed to rekindle their relationship. (Pl. 56.1, at ¶ 251-52.)
In Conklin's employ at the warehouse, his hours, pay and benefits remained the same. In this position, the Plaintiff reported to Bill Ellis, who at that time was supervisor of the warehouse but currently serves as Deputy Commissioner. Geier advised Ellis about the move when it was initiated and asked him to monitor the Plaintiff's whereabouts. (Ellis Dep. at 28.) When Conklin began working at the warehouse, Ellis advised him that he would have two ten minute breaks and one half-hour lunch break. The Plaintiff asserts that Ellis also told him that these rules would apply to Conklin only, even if they did not apply to other warehouse employees. (Pl. 56.1, at ¶ 237.)
Meanwhile, on June 17, 2008, O'Rourke and Manzella sent a letter to the Plaintiff stating that they were unable to proceed with an investigation of his claims against Wilson because of Conklin's failure to file a sufficiently detailed complaint and because his allegations did not fit within the County's definition of sexual harassment. (Def. Wilson 56.1, at ¶ 162.) To the contrary, the Plaintiff asserts that his complaint was sufficiently detailed and he also disputes whether his allegations fit within the definition of sexual harassment pursuant to the County's standard operating procedure. The County asserts that its definition of sexual harassment was only "unwelcome sexual advances, requests of sexual favors and other verbal or physical conduct of a sexual nature. . . ." (Cty. Def.'s 56.1, at ¶ 167.) However, the Plaintiff asserts that the County's definition also contemplates "verbal or physical conduct of a sexual nature when . . . [s]uch conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." (See Pl. Ex. 8 at 3B; 9 at 1.)
The Plaintiff was given another opportunity to provide more detailed information to the sexual harassment officers. Thus, Manzella and O'Rourke met with Conklin several times for this purpose, including a meeting on July 22, 2008. According to the Plaintiff, during the course of these meetings, the sexual harassment officers attempted to persuade him to drop his complaint against Wilson and repeatedly spoke to him without his attorney present. (Pl. 56.1, at ¶ 170.) However, the County Defendants deny these allegations and claim that at one meeting Conklin yelled at them and stormed out of the meeting. (Cty. Def.'s 56.1, at ¶ 170.)
The Plaintiff was eventually sent a letter on August 7, 2008, advising him that in the absence of further specific information, the BOE would take no further action on his complaint. (Cty. Def.'s 56.1, at ¶ 225.) Thereafter, the Plaintiff's case was closed for failure to file a detailed complaint setting forth specific allegations of sexual harassment. According to Conklin, the complaint was closed only because the BOE "wanted it to go away" and because it wanted him to "drop it". (Conklin Dep., at 184, 185.)
During the course of the investigation, which was simultaneous with the Plaintiff's time at the warehouse - from May 12, 2008 through August 20, 2008 - Ellis kept a log of the Plaintiff's whereabouts. The log indicates that Conklin had sporadic attendance and failed to notify Ellis of his absences. The Plaintiff does not dispute the accuracy of these records, but asserts he used his accrued time in connection with the continued harassment he endured from Wilson. Ellis testified that when he spoke to Conklin regarding his attendance records, Conklin replied that he had "doctors and lawyers appointments and never knows when he can come in." (Ellis Dep., at 32:21-25.) Ellis also met with Commissioner Geier at one point to discuss the Plaintiff's attendance issues.
On August 20, 2008, Defendant Geier terminated the Plaintiff. Geier maintains that she only consulted her Deputy Commissioner Wayne Rogers regarding the decision, although the Plaintiff claims she also consulted with Defendant Jesse Garcia. Some of stated reasons for the Plaintiff's termination were that he had an erratic schedule and that he used a BOE computer to get information that was not used for BOE purposes. (Cty. Def.'s 56.1, at ¶ 259.) The Plaintiff contends that his termination was solely motivated by retaliation for his filing a sexual harassment complaint against Wilson.
The Plaintiff commenced this action on July 15, 2009, asserting causes of action against the County of Suffolk, the Suffolk BOE, Cathy L. Richter Geier, in her official and individual capacity, Jesse Garcia, in his official and individual capacity, Denise A. Wilson, in her official and individual capacity, and Chris P. Termini, in his official and individual capacity. The Plaintiff asserted claims for retaliation and a hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1983 ("Section 1983"), and the New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law § 296.
On September 14, 2009, two of the defendants, Denise A. Wilson and Chris P. Termini, filed a motion to dismiss the claims alleged against them. On May 8, 2010, this Court issued a decision that granted the Defendant Termini's motion to dismiss all of the Plaintiff's claims against him, and granted the Defendant Wilson's motion to dismiss the Plaintiff's Section 1983 claims against her as well as the NYSHRL claims against her, but only in her official capacity. On September 19, 2011, all of the remaining defendants filed motions for summary judgment. Three separate motions were filed by the following Defendants: (1) one motion was filed by the County of Suffolk, the Suffolk BOE, and Geier (collectively, the "County Defendants"); (2) one motion was filed by Wilson; and (3) one motion was filed by Garcia. The Court will address each motion in turn.
A.Legal Standards 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, 106 S. Ct. 1348. 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 Summary Judgment Motion by the County Defendants
The Court will first address the motion for summary judgment filed by the Defendants the County, the BOE, and Geier, in both her individual and official capacity (collectively, the "County Defendants"). The County Defendants move for summary judgment as to both the Defendants' hostile work environment and retaliation claims, which are asserted under Title VII, Section 1983, and the NYSHRL.
The standards for evaluating claims arising under Title VII, Section 1983, and the NYSHRL are identical for both hostile work environment and retaliation claims. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2000); Smith v. Town of Hempstead Dep't of Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451 (E.D.N.Y. 2011) (Spatt, J.) ("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."); Davis v. Oyster Bay-East, No. 03 Civ. 1372, 2006 WL 657038, at *8, n.12 (E.D.N.Y. Mar. 9, 2006), aff'd, 220 Fed. App'x. 59 (2d Cir. 2007) ("discrimination claims under Title VII, 42 U.S.C. §§ 1981 and 1983, and NYHRL § 296 are analyzed together, as the same analytic framework applies to each").
With regard to Title VII, only the County and the BOE may be held potentially liable, because individual defendants such as Geier may not be held personally liable for alleged violations of this statute. However, under certain circumstances, an employee may be held individually liable under Section 1983 and NSYHRL. See, e.g., Chamblee v. Harris & Harris, Inc., 154 F. Supp. 2d 670, 676-77 (S.D.N.Y. 2001) (noting that an employee may be held individually liable under NYSHRL if he has "sufficient authority and power to do more than simply carry out personnel decisions made by others").
1.As to the Hostile Work Environment Claims
In addition to his claims for retaliation, the Plaintiff also asserts that he was subjected to unlawful discrimination and harassment in and through the creation of a severe and pervasive hostile work environment that substantially interfered with his employment, in violation of Title VII, Section 1983, and NYSHRL. As with retaliation, all three causes of action are subject to the same analysis. See Smith, 798 F. Supp. 2d at 451 ("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.").
To state a claim for hostile work environment in violation of Title VII [or Section 1983 or NYSHRL], a plaintiff must plead facts that would tend to show the complained of conduct: (1) is objectively severe or pervasive - that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's sex. Patane, 508 F.3d at 113 (internal quotation marks and punctuation omitted), citing Gregory v. Daly, 243 F.3d 687, 691--92 (2d Cir. 2001). These three elements are termed, ...