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Seale v. Madison Cnty

United States District Court, N.D. New York

March 7, 2013

KELLY SEALE and DAVID SEALE, Plaintiffs,
v.
MADISON CNTY.; ALLEN RILEY, Individually and in his Official Capacity as Madison Cnty. Sheriff; MATTHEW EPISCOPO, Individually and in his Official Capacity as Captain of the Madison Cnty. Sheriff's Ofc.; DOUG BAILEY, Individually and in his Official Capacity as Former Undersheriff for Madison Cnty.; RONALD CARY, Individually and in his Official Capacity as Former Sheriff for Madison Cnty.; and RYAN AYLWARD, Individually and in his Official Capacity as Coordinator of Labor Relations for Madison Cnty., Defendants

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For Plaintiffs: STEPHEN CIOTOLI, ESQ., OF COUNSEL, O'HARA, O'CONNELL & CIOTOLI, Fayetteville, NY.

For Defendants: FRANK W. MILLER, ESQ., BRYAN N. GEORGIADY, ESQ., OF COUNSEL, THE LAW FIRM OF FRANK W. MILLER, East Syracuse, NY.

OPINION

Hon. Glenn T. Suddaby, United States District Judge.

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MEMORANDUM-DECISION and ORDER

Currently before the Court, in this employment discrimination action filed by Kelly Seale and David Seale (" Plaintiffs" ) against the above-captioned government entity[1] and five named individuals (" Defendants" ), is Defendants' motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) and/or to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). (Dkt. No. 11.) For the reasons set forth below, Defendants' motion for judgment on the pleadings is granted in part and denied in part, and Defendants' motion to dismiss the Complaint for lack of subject matter jurisdiction is granted in part and denied in part.

I. RELEVANT BACKGROUND

A. Plaintiffs' Complaint

Plaintiffs' Complaint asserts the following twelve claims against all Defendants: (1) sex discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (" Title VII" ), (2) hostile work environment under Title VII, (3) disparate treatment under Title VII, (4) retaliation under Title VII, (5) violation of the right to equal protection of the laws under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, (6) hostile work environment under the Fourteenth Amendment pursuant to § 1983, (7) disparate treatment under the Fourteenth Amendment pursuant to § 1983, (8) retaliation under the Fourteenth Amendment pursuant to § 1983, (9) gender discrimination, disparate treatment, hostile work environment and retaliation by all Defendants, as well as aiding and abetting same by the individually named Defendants, under the New York Human Rights Law, N.Y. Exec. Law § 296 (" NYHRL" ), (10) retaliation under the First Amendment pursuant to § 1983, (11) violation of the right to vote under the Fourteenth and Nineteenth Amendments pursuant to § 1983, and (12) conspiracy to deprive the right to equal protection of the laws under 42 U.S.C. § 1985. All causes of action are asserted on behalf of both Plaintiffs, except for the Title VII disparate treatment claim, which is asserted solely on behalf of Plaintiff, Kelly Seale.

Generally, in support of their claims, Plaintiffs set forth the following factual

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allegations in their Complaint, which are accepted by the Court as true for purposes of deciding the current motion. Plaintiff, Kelly Seale (" Ms. Seale" ), was employed by the Madison County Sheriff's Office (" Sheriff's Office" ) as a Community Services Aide from January 2008 through May 2010. Plaintiff, David Seale (" Mr. Seale" ), is Kelly's husband. Mr. Seale has been employed at the Sheriff's Office as a Deputy Sheriff, Criminal Investigator and Polygraphist since 1992. In 2005, Mr. Seale injured his shoulder in the line of duty, resulting in multiple surgeries between 2005 and 2009, as well as intense physical therapy and rehabilitation. During all of his periods of surgeries, rehabilitation and physical therapy, Mr. Seale was covered by the Defendant, Madison County's (" the County" ) worker's compensation plan.

From January 2008 until sometime in January 2010, Ms. Seale's workspace was located in a small office area connected to a hallway that was just outside the office of Defendant, Matthew Episcopo (" Episcopo" ). Episcopo was employed by the Sheriff's Office as a Captain, and was Mr. Seale's supervisor.

According to the Complaint, Ms. Seale " was subjected to repeated instances of sexual harassment, intimidation, humiliation, and discrimination by [] Episcopo," from January 2008 through January 2010. ( See Dkt. No. 1, at ¶ 27 [Plaintiffs' Complaint].) In late 2009, Ms. Seale informed Defendants " about Episcopo's numerous instances of inappropriate behavior towards her, including but not limited to" the following eight events: (1) In May 2008, Episcopo placed a radio in Ms. Seale's work space with the volume set at a high level so that she could not hear him talk in his office. After Ms. Seale complained to Defendant, then Sheriff Ronald Cary (" Cary" ), Episcopo removed the radio, stating to Ms. Seale that " your radio privileges have been revoked." (2) In September 2008, after Mr. Seale was taken out of work again by his doctor, Episcopo intentionally failed to turn in Ms. Seale's pay sheet record on time. As a result, Ms. Seale did not receive a paycheck on time. (3) On October 20, 2008, Episcopo was in his office with his door shut speaking to a deputy, who had apparently returned to work after having been out on worker's compensation, while still using crutches. In a loud tone of voice, so that Ms. Seale could hear, Episcopo stated, " This department is made up of a bunch of fucking cry babies that can't do their jobs . . . [this deputy] came back early on crutches and others are still milking comp and crying that their arms hurt. If I had my way, a lot of people wouldn't have their fucking jobs and we all know who I'm talking about." Episcopo knew that Mr. Seale was the only deputy out on worker's compensation for an arm injury. (4) On December 10, 2008, Ms. Seale discovered a pornographic snowman cartoon on her desk, and later learned that Episcopo had sent the identical cartoon to numerous deputy sheriffs over the previous few years. (5) On July 13, 2009, the day after Ms. Seale returned from a week's vacation, Episcopo entered his office with a deputy after first seeing Ms. Seale, and began singing in a loud voice, " The bitch is back, the bitch is back, spread her legs and eat her for a snack." Episcopo and the deputy then began talking loudly about an episode of South Park titled " Red Rocket," in which a character in the cartoon masturbates a dog in an attempt to " milk it." (6) On November 2, 2009, Episcopo went out of his way to talk to other employees and inform them that they should help themselves to snacks in the break room, but did not extend the same invitation to Ms. Seale. (7) On November 4, 2009, Episcopo was in his office speaking loudly to a lieutenant

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about Jim Zophy, who was the losing candidate for Madison County Sheriff, and whom Episcopo knew Plaintiffs supported. Episcopo stated that he was so happy " that fucking cock sucker Zophy didn't get elected." Episcopo further stated, " I know that I am saying this loud enough so that anyone sitting outside of my office can hear me and know that changes are coming and they won't like it." Finally, Episcopo stated that he was going to get rid of all of the deputies and Sheriff's Office personnel who supported Zophy during the election. (8) The next day, November 5, 2009, as Episcopo was entering his office, he looked over at Ms. Seale and stated in a loud voice, " It's a glorious day -- it's such a nice day, you can't wipe the smile off my face . . . I love it." Shortly thereafter, Kathy Chaires, secretary to the Sheriff, told Ms. Seale that she heard Episcopo's comments from the previous day, and reported them to Defendant Doug Bailey (" Bailey" ), then Undersheriff for the Sheriff's Office.

Later in the day on November 5, 2009, Ms. Seale spoke to Bailey and recounted Episcopo's statements from that morning. Bailey expressed his disbelief because he just told Episcopo that morning to stop harassing Ms. Seale. Ms. Seale then recounted all of the details of the previously alleged eight instances of Episcopo's conduct, at which time Bailey was " visibly shocked and embarrassed." Bailey requested that Ms. Seale immediately file a harassment complaint with the County's Personnel Department. Shortly thereafter, Ms. Seale filed a complaint.

The County conducted an investigation of Ms. Seale's complaint. On January 6, 2010, Defendant, Ryan Aylward, (" Aylward" ), Coordinator of Labor Relations for the County, informed Ms. Seale that she had no right to know any of the details of the investigation, but that her complaint of sexual harassment, discrimination, hostile work environment and retaliation was deemed to be unsupported and unfounded. Defendants then informed Ms. Seale that her office was being moved to a location outside of the Sheriff's Office because " Episcopo is a captain . . . we can't move him." (Dkt. No. 1, at ¶ 37.) On January 11, 2010, Defendant Allen Riley (" Riley" ), the newly elected Sheriff, showed Ms. Seale her new office space in the windowless basement of the Department of Motor Vehicles (" DMV" ) building across the street from the Sheriff's Office. Riley told Ms. Seale that even he, as Sheriff, was denied access by the County to any details of the investigation of her complaint and that " he was truly sorry for the difficulty this was causing her but that he valued her as an employee and would do his best to make the situation work." ( Id. at ¶ 42.)

When Ms. Seale was hired, " part of the incentives and compensation for [her] employment was that she was allowed to make her own schedule and come in on days and at times that were convenient to her, whether it be days, nights, weekdays, or holidays, as long as she did not exceed 37 hours every two weeks and completed her assigned work." ( Id., at ¶ 23.) Also, Ms. Seale was given a County-owned S.U.V. to use as her job required, including trips to various schools, governmental offices and civic organizations within the community.

After Ms. Seale's office was moved, she was no longer able to work during any period other than between 8:30 a.m. and 5:00 p.m., when the DMV building was open, because she was not allowed to have a key to the building.

Ms. Seale filed a Notice of Claim against the Defendants on or about March 5, 2010. Also on or about March 5, 2010, Ms. Seale filed a complaint with the Equal Employment Opportunity Commission (" EEOC" )

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regarding gender-based discrimination, sexual harassment, hostile work environment, and retaliation, as well as retaliation suffered by Mr. Seale in his position as a Deputy Sheriff under Defendant Episcopo. After Ms. Seale filed her EEOC complaint, the Defendants replaced her County-owned S.U.V. that she was using for work-related travel with a 15-year-old van, which was prone to mechanical breakdowns. Due to the treatment she received at the hands of Defendants, Ms. Seale resigned from her position and has since had to find other employment.

Prior to Ms. Seale filing her complaint with the County, during the time periods that Mr. Seale was out on worker's compensation, the County treated him as a full-time, fully employed Deputy Sheriff with the same benefits and salary as he had before he went out on compensation. One of those benefits is the ability to " sell back" his unused vacation time, which would appear as additional compensation in his paycheck. After Ms. Seale filed her complaint with the County, Bailey informed Mr. Seale that he was being denied his vacation " buy back" benefit, and that Mr. Seale would have to return to work full-time before December 28, 2009, in order to be eligible for the vacation " buy-back." In January 2010, approximately one month after Mr. Seale returned to full duty, the County denied or attempted to deny payment of any further physical therapy sessions or rehabilitation for Mr. Seale's shoulder injury. Also, Mr. Seale was denied the use of his sick and/or personal time or any other compensation time to attend physical therapy sessions during his normal work day, which is a restriction that was not placed on any other deputy.

Shortly after Ms. Seale filed her complaint with the EEOC, Mr. Seale was once again taken out of work due to his shoulder injury. Thereafter, in April 2010, Riley notified Mr. Seale in writing that he would be (1) required to provide ongoing and continuing verification by medical documentation of his " alleged on-duty injury; " (2) required to provide proof of scheduled appointments related to his " alleged" injury; and (3) ordered to home confinement for the duration of his leave while on worker's compensation, during which time he would be required to provide notification to a supervisor every time he left his residence, along with the reasons for doing so. See Dkt. No. 1, at ¶ 66. Mr. Seale's counsel immediately notified Riley that the aforementioned restrictions appeared to be in retaliation for Ms. Seale's EEOC complaint.

One week later, Mr. Seale requested to switch his scheduled shift with another deputy, who was simultaneously filing the same request. Shortly thereafter, Riley denied the request for a shift change without explanation, despite that Mr. Seale had never seen such a request denied in all of his years working at the Sheriff's Office.

Mr. Seale subsequently learned that the previous restrictions, which were placed on him by Riley, originated with Defendant Aylward in consultation with, and at the instigation or request of, Defendant Episcopo. On May 6, 2010, Riley rescinded his previous restrictions regarding Mr. Seale's home confinement. On May 10, 2010, Mr. Seale returned to work. The next day, Riley rescinded his denial of Mr. Seale's requested shift change.

After Mr. Seale returned to work, his assigned patrol car was vandalized while it was parked in a lot that only County employees had access to. Also, on a number of occasions, Mr. Seale discovered that the shotgun shells from the patrol unit's service shotgun as well as additional shells and ammunition for his assigned patrol car's shotgun were missing. Further, Mr. Seale came on duty to find that his assigned

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patrol vehicle, which was parked in a lot that was accessible only by County employees, had two flat tires. On another occasion, Mr. Seale came on duty to find that the dashboard camera in his assigned patrol car was unplugged.

Familiarity with the remaining factual allegations supporting Plaintiffs' claims is assumed in this Decision and Order, which is intended primarily for review by the parties. ( See generally Dkt. No. 1.)

B. Defendants' Motion

Generally, in support of their motion for judgment on the pleadings and/or to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction, Defendants assert the following nine arguments: (1) Plaintiff Kelly Seale's Title VII hostile work environment claim must be dismissed because (a) she did not allege she was harassed because of her gender, (b) she did not allege harassment that was severe or pervasive, and (c) she did not allege a plausible basis to impute Episcopo's conduct to the County; (2) Plaintiff Kelly Seale's Title VII gender discrimination and disparate treatment claims must be dismissed because (a) she did not allege sufficient facts to show an adverse employment action and (b) she did not allege facts to plausibly show an inference of discrimination; (3) Plaintiffs' Title VII retaliation claims must be dismissed because (a) Plaintiff Kelly Seale did not allege sufficient facts to show an adverse employment action and (b) the Court lacks jurisdiction over Plaintiff David Seale's Title VII retaliation claim; (4) Plaintiff Kelly Seale's equal protection claim must be dismissed because she failed to allege facts plausibly showing that the County acted with discriminatory intent; (5) Plaintiffs' Fourteenth Amendment claims for hostile work environment, disparate treatment and retaliation must be dismissed because they are either redundant or legally nonexistent; (6) Plaintiffs' NYHRL claims must be dismissed for the same reasons their counterpart claims under Title VII must be dismissed and alternatively, because Plaintiff David Seale did not submit a Notice of Claim; (7) Plaintiffs' First Amendment retaliation claims must be dismissed because (a) Plaintiff Kelly Seale did not allege sufficient facts to show an adverse employment action and (b) Plaintiff David Seale did not allege sufficient facts to show a causal connection between the alleged retaliation and any actions by the County; (8) Plaintiffs' voting rights claim must be dismissed because it is duplicative of their First Amendment retaliation claim; and (9) Plaintiffs' conspiracy claim must be dismissed because (a) it is barred under the intra-corporate conspiracy doctrine, (b) Plaintiff Kelly Seale did not allege conspiratorial conduct against her, (c) Plaintiff David Seale did not allege a specific act of conspiracy, (d) Plaintiff David Seale did not allege he was the victim of class-based animus, and (e) where Plaintiffs fail to allege any § 1983 claim, their conspiracy claim must also fail. ( See generally Dkt. No. 11-1.)

Generally, in response to Defendants' motion, Plaintiffs assert the following five arguments: (1) Plaintiffs have stated valid Title VII claims because (a) they have alleged facts to show that Episcopo created a sexually abusive and hostile work environment, which unreasonably interfered with Plaintiff Kelly Seale's work performance, (b) Plaintiffs have alleged that Ms. Seale was subjected to a material change in her work schedule after she complained about sexual harassment, giving rise to an inference of discrimination, (c) Plaintiffs have alleged that Defendants took adverse actions against Ms. Seale that would have dissuaded a reasonable person from making or supporting a charge of discrimination sufficient to state a claim for retaliation, and (d) Plaintiffs have alleged

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facts to support a finding that (i) Mr. Seale's retaliation claim is reasonably related to the claims Ms. Seale filed with the EEOC, (ii) Defendants materially altered the terms and conditions of Mr. Seale's employment, and (iii) Mr. Seale is within the zone of interest protected by Title VII's anti-retaliation provisions; (2) Plaintiffs have alleged an equal protection claim against the County as well as the individual Defendants, which encompasses claims for hostile work environment, disparate treatment and retaliation, because they have adequately pled these claims under Title VII; (3) Plaintiffs have sufficiently alleged claims under the NYHRL because (a) the standards for those claims are the same as the standards under Title VII, (b) Plaintiffs have alleged that the individual Defendants have the authority to do more than carry out the personnel decisions made by others and that they have aided and abetted the harassing behavior, which caused the hostile work environment, or have aided and abetted the covering up of such behavior, and (c) a Notice of Claim is not required for suit against the individual Defendants; (4) Plaintiffs have sufficiently pled their First Amendment claims, to the extent those claims are identical to their Title VII and Fourteenth Amendment claims, and Plaintiffs have sufficiently alleged a causal connection between Episcopo's threats and Defendants' actions; and (5) Plaintiffs have adequately pled their conspiracy claim to the extent they have adequately pled their § 1983 claims, and the intra-corporate conspiracy doctrine does not apply to this case because Defendant Aylward worked in the Personnel Department and the remaining individual Defendants worked in the Sheriff's Office. ( See generally Dkt. No. 14.)

Generally, in reply to Plaintiffs' response, Defendants assert the following eight arguments: (1) Plaintiff Kelly Seale fails to allege facts plausibly suggesting that the County is liable on her hostile work environment claim; (2) Plaintiff Kelly Seale fails to allege facts plausibly suggesting that her vehicle swap and office relocation are materially adverse actions, and fails to allege that either Defendants Riley or Aylward harbored any gender-based animus against her, either of which are fatal to her disparate treatment claim; (3) Plaintiff Kelly Seale fails to allege facts plausibly showing that her vehicle swap and office relocation are materially adverse for purposes of her Title VII retaliation claim; (4) Plaintiff Kelly Seale's opposition to the motion for judgment on the pleadings regarding her equal protection claim relies on allegations that do not appear in her pleading; (5) Plaintiff David Seale's Title VII retaliation claim must be dismissed for lack of subject matter jurisdiction because he did not file a complaint with the EEOC, either jointly with Plaintiff Kelly Seale or individually; (6) Plaintiff David Seale failed to sufficiently allege that the action Defendant Riley took at the encouragement of Episcopo was materially adverse, for purposes of his First Amendment retaliation claim; (7) the intra-corporate conspiracy doctrine applies to bar Plaintiffs' conspiracy claim because all Defendants are County employees; and (8) any remaining pendent state law causes of action must be dismissed for lack of subject matter jurisdiction, should the court dismiss all of Plaintiffs' federal causes of action. ( See generally Dkt. No. 15.)

II. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Motions for Judgment on the Pleadings

" The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim." Patel v.

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Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (collecting cases). In evaluating such motions, district courts must accept all allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Patel, 259 F.3d at 126 (citing Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998)). " To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face." Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012).

For the sake of brevity, the Court will not recite, in this Decision and Order, the well-known legal standard governing dismissals for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), but will direct the reader to the Court's decision in Wade v. Tiffin Motorhomes, Inc., 686 F.Supp.2d 174, 2009 WL 3629674, at *3-5 (N.D.N.Y. 2009) (Suddaby, J.). In addition, the Court will merely add a few ...


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