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Burns v. City of Utica

United States District Court, N.D. New York

February 20, 2014

JULIANNE BURNS and CHRISTOPHER BURNS, Plaintiffs,
v.
CITY OF UTICA; ARMOND FESTINE, individually and as City of Utica Assistant Corporation Counsel; LINDA FATATA, individually and as City of Utica Corporation Counsel; and MICHAEL KNAPP, individually and as a firefighter employed by the City of Utica Fire Department, Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Plaintiffs: FRANK POLICELLI, ESQ., OF COUNSEL, OFFICE OF FRANK POLICELLI, Utica, New York.

For City of Utica, Festine, and Fatata, Defendants: JOHN P. ORILIO, ESQ., MARK C. CURLEY, ESQ., ZACHARY C. OREN, ESQ., OF COUNSEL, OFFICE OF CORPORATION COUNSEL - CITY OF UTICA, Utica, New York.

For Knapp, Defendant: RONALD G. DUNN, ESQ., PETER N. SINCLAIR, ESQ., OF COUNSEL, GLEASON, DUNN, WALSH & O'SHEA, Albany, New York.

OPINION

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Frederick J. Scullin, Jr., Senior United States District Judge.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Defendant Michael Knapp's motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction, see Dkt. No. 9-2, and Defendants City of Utica, Armond Festine and Linda Fatata's (collectively " Municipal Defendants" ) motion to dismiss for failure to state a claim, see Dkt. No. 12-5.

II. BACKGROUND

Since June 3, 2002, the City of Utica has employed Plaintiff Julianne Burns (hereinafter " Plaintiff" ) as a firefighter. See Dkt. No. 14, Amendment Complaint, at ¶ 10. Defendant Knapp is also a firefighter for the City of Utica. See id. at ¶ 8. Plaintiff alleges that Defendant Knapp sexually assaulted her in the spring of 2010. See id. at 12-13. After finding out about the incident, Plaintiff's friend and co-worker, Ryan Marchese, insisted she confront Defendant Knapp. See id. at ¶ 15. On September 5, 2010, with her husband's assistance, Plaintiff recorded a telephone conversation that she had with Defendant Knapp. See id. at ¶ 17. On September 8, 2010, Plaintiff filed a formal written complaint with her supervisor, Chief of the Fire Department, Russell Brooks (" Chief Brooks" ). See id. at ¶ ¶ 18-19.

Defendant City of Utica determined that there was sufficient evidence to lodge a formal disciplinary charge against Defendant

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Knapp.[1] In addition to lodging the disciplinary charge, Chief Brooks suspended Defendant Knapp from September 17, 2010, to February 4, 2011, and placed him on administrative leave, pending discipline, with pay.[2] The City's Office of Corporation Counsel conducted the subsequent investigation of the incident. See Dkt. No. 14 at ¶ 26. At the time of the investigation, Defendant Fatata was the Corporation Counsel for the City of Utica and Defendant Festine was Assistant Corporation Counsel for the City. See id. at ¶ ¶ 6-7. Andrew LaLonde was hired as a contracted Special Assistant Corporation Counsel. See id. at ¶ 7.

In the fall of 2010, Dr. Julia Grant, Ph.D., diagnosed Plaintiff as suffering from PTSD. See id. at ¶ 23. On October 12, 2010, Plaintiff applied for disability benefits pursuant to § 207(a) of New York General Municipal Law. See id. at ¶ 24. Subsequently, on January 26, 2011, Dr. Lawrence Farago, a qualified forensic psychiatrist, conducted an independent psychiatric evaluation of Plaintiff. See Dkt. No. 16-2 at 3. On February 15, 2011, Dr. Farago issued his report, concluding that Plaintiff did not suffer from PTSD and that she was fit to return to work. See id. Plaintiff returned to her regular duties as a firefighter.

On February 23, 2011, Plaintiff's claim for disability benefits under § 207(a) was denied. See Dkt. No. 12-3 at 3. Plaintiff made a timely demand pursuant to § 10 of the CBA to have an arbitrator review the denial of her disability benefits. Michael S. Lewandowski was selected as the arbitrator to review the denial of Plaintiff's § 207 benefits. On March 12, 2012, Mr. Lewandowski issued a 52-page opinion and award, upholding Defendant City of Utica's denial of § 207(a) benefits to Plaintiff, holding that the claim lacked merit. See Dkt. No. 12-3 at 52.

Ronald Kowalski presided at Defendant Knapp's disciplinary hearing. On March 31, 2012, Mr. Kowalski rendered an opinion and award in which he concluded that Defendant City of Utica had failed, by a preponderance of the evidence, to sustain the charges against Defendant Knapp. See Dkt. No. 24. Accordingly, Mr. Kowalski fully restored Defendant Knapp to his former position. See id.

Plaintiff filed a complaint with the New York State Division of Human Rights (" NYSDHR" ), in which she charged both Defendant Knapp and the Municipal Defendants with an unlawful discriminatory practice relating to employment because of sex in violation of New York Executive Law Article. 15 (" Human Rights Law" ). On March 26, 2012, the NYSDHR determined that probable cause existed. See id. On May 7, 2012, Plaintiff requested a notice of a right to sue from the Equal Employment Opportunity Commission (" EEOC" ), which she received on September 17, 2012. See Dkt. No. 14 at ¶ 47.

On August 10, 2012, Utica Mayor Robert M. Palmieri issued a memorandum, in which he directed Plaintiff to return to work. See id. at ¶ 45. In early September 2012, while working on the fire line, Plaintiff came into contact with Defendant Knapp a couple of times. See id. at ¶ 49. Plaintiff, both times, avoided direct contact and association with Defendant Knapp. On one occasion, the Deputy Chief drove her home. On the second occasion, the

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Deputy Chief directed her to leave the scene. See id.

In her amended complaint, Plaintiff asserts five federal causes of action and two state-law causes of action. In her first cause of action, she alleges disparate treatment on the basis of her gender in violation of Title VII of the Civil Rights Act (" Title VII" ) against all Defendants. See Dkt. No. 14 at ¶ ¶ 55-58. As a basis for this cause of action, Plaintiff contends that Defendant Knapp's sexual assault of or unwanted sexual advances toward her constitute sexual harassment and disparate treatment in violation of Title VII. See id. at ¶ 55. Plaintiff further implicates the Municipal Defendants by asserting that they manipulated the subsequent investigation of the incident, thus aiding and abetting a cover up of Defendant Knapp's conduct. See id. Plaintiff argues that Defendants Fatata and Festine are officials with policy-making authority who subsequently supported unconstitutional conduct. See id. at ¶ 56. Finally, Plaintiff alleges that all subordinate officials of Defendant City of Utica and its fire department were also involved in sustaining such unjustified and unconstitutional conduct. See id. at ¶ 57.

In her second cause of action, pursuant to 42 U.S.C. § 1983, Plaintiff alleges that Defendants violated her constitutional rights. See id. at ¶ ¶ 60-64. Plaintiff contends that Defendant Knapp and the Municipal Defendants engaged in reckless, intentional and unjustified conduct under color of state law. See id. at ¶ ¶ 60-61. Although confusing, Plaintiff appears to argue that it was the official policy and custom of the Municipal Defendants, along with the assistance of Defendant Knapp, to violate Plaintiff's constitutional rights. See id. As evidentiary support for this position, Plaintiff references Defendant Festine's alleged refusal to address his conflict of interest with Plaintiff's husband, Christopher Burns, during the § 207(a) arbitration hearing, after receiving a letter from Plaintiff's then-attorney, Mimi Satter. See id. at ¶ 61. Finally, Plaintiff contends that she is entitled to recover attorney's fees pursuant to 42 U.S.C. § 1988.

In her third cause of action, Plaintiff alleges that the Municipal Defendants violated 42 U.S.C. § 1985 by engaging in a conspiracy to deny her claim of sexual harassment and her claim for disability benefits. See id. at ¶ ¶ 66-72. Specifically, Plaintiff contends that, for a two-year period, between September 2010 and September 2012, Defendant Festine, Defendant Fatata, Dr. Farago and Mr. LaLonde entered into an express (or even implied) agreement to engage in that conspiracy. See id. at ΒΆ 66. Plaintiff also claims that the Municipal Defendants conducted a purposefully inadequate and incomplete investigation, with the singular purpose of exonerating Defendant Knapp and denying Plaintiff ...


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