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Allessi v. New York State Dep't of Corr. & Cmty. Supervision

United States District Court, W.D. New York

April 22, 2014


Page 222

For Pamela Allessi, Plaintiff: Charles L. Miller, II, LEAD ATTORNEY, Law Office of Lindy Korn, Buffalo, NY; Lindy Korn, LEAD ATTORNEY, Buffalo, NY.

For New York State, Department of Corrections and Community Supervision, Defendant: Benjamin K. Ahlstrom, LEAD ATTORNEY, New York State Attorney General's Office, Buffalo, NY.

For Ronald W. Moscicki, as aider abettor, Defendant: Daniel C. Gard, LEAD ATTORNEY, PRO HAC VICE, Dunkirk, NY.

Page 223


WILLIAM M. SKRETNY, Chief United States District Judge.


Plaintiff commenced this employment discrimination action alleging claims of gender discrimination, hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq. and New York State Human Rights Law, N.Y. Executive Law § § 290 et seq. Plaintiff further alleges a claim against Defendant Ronald W. Moscicki under 42 U.S.C. § 1983 for deprivation of her federal rights under the color of law. Presently before this Court are the dismissal motions of Defendant New York State Department of Corrections and Community Supervision (" DOCCS" ) and Defendant Moscicki.[1] The motions are fully briefed and oral argument is unnecessary. For the reasons that follow, both motions are granted and the Complaint is dismissed in its entirety.


As alleged in the complaint, Plaintiff is employed as a correction counselor at one of DOCCS' shock incarceration facilities. (¶ 11.) " Throughout the years," Defendant Moscicki, the superintendent of the facility, " has made various derogatory comments referencing females," including referring " to women as 'fucking idiots' and female inmates as 'fucking females.'" (¶ 12-13.)

In May 2010, Plaintiff wore jeans to a training session at which such dress was permissible. (¶ 14.) Defendant Moscicki called Plaintiff into his office after training and " subjected [her] to a barrage of obscenities for . . . wearing jeans to the training session." (¶ 14.) In contrast, another counselor with whom Defendant Moscicki was having a romantic relationship, Hilda Ancelet, " was driven to the training by the Superintendent," and she " sat throughout the training with her head on the table and introduced herself stating she was 'hung-over.'" (¶ 15.) Despite the fact that Defendant Moscicki would have

Page 224

known of Ancelet's condition, nothing was said regarding her representation. (¶ 15.)

A few days later, Ancelet accused Plaintiff of telling other employees that it was her who reported Plaintiff was wearing jeans to Defendant Moscicki, although " Plaintiff had done no such thing." (¶ 16.) Defendant Moscicki then went to Plaintiff's office and yelled at her " to keep her 'fucking mouth shut,' while pointing at her with his finger in an intimidating manner." (¶ 16.)

In June 2010, Plaintiff and three other female employees filed an internal complaint with DOCCS' Office of Diversity Management disclosing the romantic relationship between Defendant Moscicki and Ancelet and alleging hostile treatment based on sex. (¶ 17.) Following the filing, Plaintiff was " subjected to repeated hostility" from Defendant Moscicki and Ancelet; shunned by an office mate; and subjected to the " sarcastic comments" of coworkers. (¶ 18-19.) Plaintiff and the other individuals who complained were referred to " as 'cry babies,' 'bitches,' and 'queens,' as well as [subjected to] glares, smirks, and snide other comments." (¶ 19.)

In September 2010, Plaintiff was informed that her work hours would shift a half an hour in the following month, from 7 a.m. to 3 p.m. to 7:30 a.m. to 3:30 p.m. " due to programmatic changes that would no longer require the Plaintiff to perform 'reception duties.'" (¶ 20.) Although this change had been planned in July 2009, it was not implemented with respect to her schedule " until after she made her internal complaint in June 2010." (¶ 20.) Plaintiff asserts this change was not trivial because she used the time to prepare paperwork, handle inmate family calls, and review inmate folders. (¶ 22.) As per Defendant Moscicki, Plaintiff was the only counselor who reviewed these folders, and prior to the removal of Plaintiff's reception screening duties, Ancelet " would complain [directly to Defendant Moscicki] if the Supervisor asked other counselors to help when there were a lot of screenings." (¶ 22.)

" [I]n December 2010[,] Ms. Ancelet called the Plaintiff a 'white ass fucking bitch.'" (¶ 24.) " Also in December 2010, the Plaintiff was directed to move her office so that Ms. Ancelet and her office mate could have an office with a window." (¶ 25.) Although she complained, " [o]n October 27, 2010 [sic] the Plaintiff received a memo directing her to move her office, which she did." (¶ 25.) After she complained to the Diversity Office, she was allowed to move back. (¶ 25.) Ancelet responded by " loudly stat[ing] while in another counselor's office, 'That fucking bitch! I don't want her fucking office. It reeks of her. Just remember, what goes around comes around. She'll get hers!'" (¶ 26.) Defendant Moscicki " on various occasions" also commented " that he is 'not going out without a bang.'" (¶ 27.)

Plaintiff was given additional casework in October 2010, resulting in her having the largest caseload. (ΒΆ 28.) Although another corrections counselor offered to help Plaintiff, ...

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