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Marcotte v. City of Rochester

United States District Court, Second Circuit

May 29, 2013


Christina A. Agola, Esq., Ryan C. Woodworth, Esq., Christina Agola PLLC, Brighton, New York, for Plaintiff.

Adam M. Clark, Esq., City of Rochester Law Department, Rochester, New York, for Defendants.


CHARLES J. SIRAGUSA, District Judge.


This is an action for employment discrimination brought pursuant to 42 U.S.C. § 1983 ("Section 1983"). Now before the Court are Defendants' motion to dismiss the complaint for failure to state a claim (Docket No. [#6]), and Plaintiff's cross-motion [#11] to amend the complaint. Plaintiff's cross-motion to amend is granted, and Defendants' motion to dismiss is granted as to the Amended Complaint.


Unless otherwise noted, the following facts are taken from the Complaint and Amended Complaint, and two disciplinary complaints that were filed against Plaintiff, which are incorporated by reference.[1] See, Clark Decl. [#6-1], Exhibits B & C. During the relevant time, between 2009 and 2012, Plaintiff was employed by the City of Rochester, New York, in the Department of Environmental Services ("DES"). Plaintiff's immediate supervisor was defendant City Engineer James McIntosh ("McIntosh"), who in turn reported to the Commissioner of DES, defendant Paul Holahan ("Holahan"). Tassie Demps ("Demps") was the City's Director of Human Resources. Plaintiff's title was "Managing Architect, " and as such, she was the "head" of the DES's Architectural Division, and the only female division head. There were several other divisions within DES, such as the Street Design Division, that were headed by males.

In connection with her work, Plaintiff was required to meet periodically with McIntosh, though the frequency of those meetings is not specified in this action. Beginning in 2009, Plaintiff began to feel that McIntosh was discriminating against her by being "unresponsive" during their meetings, by "staring" at her in a "hostile" way, and by staring at the floor in an "intimidating" manner when Plaintiff talked. Plaintiff also felt that McIntosh was "marginalizing" her and ignoring her emails to him. Plaintiff believes that McIntosh did not behave in that manner toward male division heads. Plaintiff further believes that on a particular DES project, the "Crossroads Garage project, " McIntosh ignored her input and failed to give her the proper recognition for her work on the project, while giving undue credit to male co-workers. Nevertheless, Plaintiff maintains that she consistently received "above average if not stellar performance reviews during her tenure with the City of Rochester."[2]

Between 2009 and 2011, Plaintiff met with Demps at least once, and with Holahan several times, and indicated that she was uncomfortable meeting with McIntosh because of his behavior. In late 2011, Holahan and Demps began attending meetings between McIntosh and Plaintiff, although Plaintiff maintains that Holahan and Demps failed to take any real action to address her concerns.

On February 28, 2012, Holahan, Demps and McIntosh met with Plaintiff and told her that her performance was deficient in certain respects, including her "ability to take direction from" McIntosh. See, Clark Aff. [#6-1], Ex. B. Following that meeting, on March 7, 2012, Plaintiff sent an email to Holahan, McIntosh and Demps, stating that she had "a good faith basis to believe that [she had] been subject to discrimination on the basis of sex." Proposed Amended Complaint ¶ 50. On April 10, 2012, in connection with the earlier meeting on February 28, 2012, McIntosh met with Plaintiff and gave her a list of performance expectations, and directed Plaintiff to provide him with a written response by April 17, 2012. The following day, April 11, 2012, Plaintiff filed a gender discrimination complaint with the U.S. Equal Opportunity Commission ("EEOC").

On April 23, 2012, Holahan issued a complaint against Plaintiff pursuant to New York Civil Service Law § 75 ("§ 75") based on Plaintiff's failure to provide a written response to McIntosh by April 17, 2012, as directed. On April 23, 2012, Holahan issued a second § 75 complaint against Plaintiff, charging her with several incidents of misconduct relating to her allegedly taking time off from work without permission and then falsifying her time card. On July 25, 2012, Holahan suspended Plaintiff pending a resolution of the two § 75 complaints.

On August 3, 2012, Plaintiff commenced this action, alleging gender discrimination under color of state law, pursuant to 42 U.S.C. § 1983. Although Plaintiff had already filed an EEOC complaint, she did not include a claim under Title VII, apparently because she had not yet received a "right to sue letter." The Complaint [#1] in this action named the City of Rochester, Holahan and McIntosh as defendants, and purported to state three causes of action: 1) a claim for retaliation under the First Amendment; 2) a claim for disparate treatment discrimination and hostile environment discrimination under the 14th Amendment Equal Protection Clause; and 3) a Monell liability claim against the City of Rochester, based on an alleged policy of discrimination and a failure to train and supervise.

On October 4, 2012, Defendants filed the subject motion [#6] to dismiss the Complaint, for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Defendants maintained that the First Amendment retaliation claim lacked merit, because there were no plausible allegations of protected activity, adverse action or causal nexus. Defendants also contended that the second cause of action failed to plausibly plead any type of gender discrimination. Defendants further argued that the third cause of action, for Monell liability, failed because there was no underlying constitutional violation, and because the Complaint failed to allege any plausible theory of municipal liability.

On October 12, 2012, the Court issued a Motion Scheduling Order [#7], directing Plaintiff to file and serve any response by November 5, 2012. At Plaintiff's request, the Court subsequently granted her an extension of that deadline, to January 4, 2013. See, Docket No. [#8].

On January 4, 2013, in response to Defendant's motion to dismiss, Plaintiff both opposed the motion and cross-moved [#11] for leave to file an Amended Complaint.[3] Plaintiff admitted that there was no basis for a First Amendment retaliation claim, and withdrew that cause of action. Plaintiff insisted, though, that the original Complaint [#1] adequately pleaded a discrimination claim under the Equal Protection Clause against McIntosh and Holahan and the City of Rochester, and a Monell liability claim against the City of Rochester, and the proposed amended pleading essentially repeated most of the allegations of the original pleading. The Proposed Amended Complaint purports to set forth three causes of action: 1) a claim for disparate treatment discrimination under the 14th Amendment Equal Protection Clause against McIntosh, Holahan and the City of Rochester; 2) a Monell liability claim against the City of Rochester, based on an alleged policy of discrimination and a failure to train and supervise; and 3) a punitive damages "claim" against McIntosh and Holahan. The Proposed Amended Complaint adds supplemental allegations, indicating that since the filing of the original Complaint, a hearing officer found Plaintiff guilty of all but one of the charges against her in the Section 75 Complaints.[4] Plaintiff indicated that as a result of that finding, the City of Rochester demoted her to the position of "Architect, " and took away her private office, computer and cell phone.

On May 22, 2012, counsel for the parties appeared before the undersigned for oral argument. Although not necessarily relevant to the subject motions, during oral argument the Court observed that it seemed unusual that Plaintiff's counsel had chosen to pursue a Section 1983 claim, rather than a Title VII claim. Plaintiff's attorney, Mr. Woodworth, who was appearing for Ms. Agola, indicated that he did not think it was unusual. Defendant's counsel offered that prior to the commencement of the action, he had discussed that issue with Plaintiff's counsel, Ms. Agola, and had urged her to wait to commence this action until after the EEOC had issued a "right to sue letter, " so that she could include a Title VII claim. However, Plaintiff's counsel apparently disregarded that suggestion and commenced the subject action solely as a Section 1983 claim. After oral argument, the Court became aware that Plaintiff's counsel, Ms. Agola, actually had filed a Title VII claim as a separate action, though Woodworth[5] ...

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