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Johnson v. County of Nassau

United States District Court, E.D. New York

September 22, 2014


Plaintiff is represented by Frederick K. Brewington, Law Offices of Frederick K. Brewington, Hempstead, NY.

All defendants except DaSilva are represented by Andrew Kenneth Preston, Deanna Darlene Panico, and Michael Paul Siravo of Bee Ready Fishbein Hatter & Donovan LLP, Mineola, NY.

Defendant DaSilva is represented by Justin C. Tan and John Francis McKay, III of Bond Schoeneck & King, PLLC, Garden City, NY.


JOSEPH F. BIANCO, District Judge.

Plaintiff Rodney Johnson ("Johnson" or "plaintiff") brings this civil rights action against the County of Nassau (the "County"), the Nassau County Sheriff's Department ("NCSD"), and individual defendants Acting Sheriff Michael J. Sposato ("Sposato"), Deputy Attorney Elizabeth Loconsolo ("Loconsolo"), Sergeant Joseph Kreutz ("Kreutz"), Lieutenant Barbara Gruntorad ("Gruntorad"), Captain Anthony Zuaro ("Zuaro"), Captain Michael Golio ("Golio"), Corporal Patrick McDevitt ("McDevitt"), and Correction Officer Manny DaSilva ("DaSilva"), in their official and individual capacities. The gravamen of the complaint is that plaintiff, a correction officer in the NCSD, was harassed constantly by his co-worker DaSilva on account of plaintiff's race (plaintiff is African-American), that the other defendants (collectively, the "County defendants") did not adequately address DaSilva's behavior, and that plaintiff was retaliated against for having complained about DaSilva's behavior. Plaintiff brings the following claims under federal and state law: (1) hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), 42 U.S.C. § 1983 ("Section 1983"), and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYSHRL"); (2) retaliation under Title VII, Section 1981, Section 1983, and the NYSHRL; (3) racial discrimination by a program receiving federal financial assistance under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. ("Title VI"); (4) conspiracy under 42 U.S.C. § 1985(3) ("Section 1985(3)"); (5) failure to intervene under 42 U.S.C. § 1986 ("Section 1986"); and (6) breach of contract.

Before the Court are defendants' motions for summary judgment. For the following reasons, the motions are granted in part and denied in part. First, the Court grants summary judgment to the NCSD because the NCSD does not have a legal identity independent of the County. Second, the Court denies the summary judgment motions as to plaintiff's Title VII hostile work environment claim against the County because a reasonable jury could find not only that DaSilva subjected plaintiff to a racially abusive working environment, but also that the County was responsible for this abusive working environment by inadequately addressing plaintiff's complaints about DaSilva's conduct. Because there is a reasonable basis to impute the hostile work environment to the County, the Court also denies the County's motion for summary judgment as to the Section 1981 and Section 1983 hostile work environment claims. As for the individual defendants, the Court grants summary judgment for all individual defendants as to the hostile work environment claims because Title VII does not create individual liability; DaSilva's conduct was unrelated to his job duties, and thus did not constitute state action for purposes of Sections 1981 and 1983; and no other individual defendants had the requisite level of involvement in the creation of a hostile work environment so as to be held liable under Sections 1981 and 1983. Third, plaintiff premises his federal retaliation claims upon two adverse employment actions: (1) a transfer to a less favorable position within the NCSD, and (2) a formal reprimand. The Court concludes that plaintiff has met his minimal burden to state a prima facie case of retaliation with respect to both adverse actions, and that defendant has come forward with legitimate, non-retaliatory reasons for those actions. The Court further concludes that plaintiff has raised a triable issue of fact as to whether his transfer was due to retaliation, where the County has explained that it transferred plaintiff to separate him from DaSilva but has not offered a reason for transferring DaSilva instead. As for the formal reprimand, plaintiff can point to specific evidence (the reaction of Gruntorad, his supervisor, to his complaint about his transfer, along with evidence that plaintiff had not been disciplined for similar conduct in the past) that the reprimand would not have occurred but for retaliatory animus. Accordingly, the Court denies summary judgment to the County with respect to the Title VII retaliation claim. However, the Court grants summary judgment for the County with respect to plaintiff's Section 1981 and Section 1983 retaliation claims because there is no evidence of a municipal custom or policy that caused the retaliation. In addition, the Court denies Gruntorad's motion for summary judgment as to the Section 1981 and Section 1983 retaliation claims based on evidence establishing her personal involvement in the claimed retaliation. The Court grants summary judgment to all other individual defendants with respect to these claims because there is no evidence that any other individual defendant participated in the alleged retaliation. Fourth, the Court grants summary judgment to all defendants as to plaintiff's Title VI claim due to an absence of evidence showing that the County or NCSD received federal funding. Fifth, with regard to the Section 1985(3) and Section 1986 claims, the Court grants summary judgment to all defendants on the basis of the intracorporate conspiracy doctrine. Sixth, the Court dismisses plaintiff's NYSHRL claims against the County and all individual defendants except DaSilva based upon plaintiff's failure to file a notice of claim. Because there is evidence that DaSilva acted outside the scope of his employment in creating a hostile work environment toward plaintiff, no notice of claim was required for the NYSHRL claims against him to proceed, there is sufficient evidence from which a reasonable jury could hold him liable individually under the NYSHRL, and the Court denies his motion for summary judgment as to these claims. Seventh, and finally, the Court grants summary judgment to all defendants as to plaintiff's breach of contract claim because, under New York law, an employment handbook's anti-discrimination and antiharassment policies may not serve as the basis for a breach of contract claim.


A. Facts

The following facts are taken from the parties' depositions, declarations, exhibits, and respective Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to the nonmoving party. See, e.g., Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005). Unless otherwise noted, where a party's Rule 56.1 statement is cited, that fact is undisputed, or the opposing party has not pointed to any evidence in the record to contradict it.[1]

Plaintiff is an African-American male and has worked as a Correction Officer for the NCSD since August 1993. (County 56.1 ¶¶ 1-2; DaSilva 56.1 ¶ 1.[2]) For the first twelve years of his career, plaintiff was assigned to the NCSD's Security Unit. (County 56.1 ¶ 3; DaSilva 56.1 ¶ 5.) At his request, plaintiff was reassigned from the Security Unit to the Rehabilitation Unit, the unit responsible for maintaining law libraries and schools in the County jails, on January 4, 2006. (County 56.1 ¶ 4; DaSilva 56.1 ¶ 6.) Plaintiff served as a drill instructor for the High Impact Incarceration Program ("HIIP") within the Rehabilitation Unit from January 2006 until July 2007, when the HIIP was shut down. (County 56.1 ¶ 6; DaSilva 56.1 ¶ 7.) Thereafter, plaintiff was transferred within the Rehabilitation Unit to the 832 Law Library. (County 56.1 ¶ 7; DaSilva 56.1 ¶ 7.)

Defendant DaSilva, a white male, was working as a correction officer in the Rehabilitation Unit at the time plaintiff was transferred there in January 2006. (County 56.1 ¶ 9; DaSilva 56.1 ¶ 2; Pl.'s Counter 56.1 ¶ 2.)

1. November 15, 2007 Memorandum and Subsequent Investigation

On Friday, November 9, 2007, plaintiff informed Gruntorad, his supervisor, that he was experiencing problems with DaSilva, but that he was unsure whether he wanted to "pursue this situation." (County 56.1 ¶ 11.) Gruntorad told plaintiff "that there was no place for harassment in the sheriff's department, " and that plaintiff should "officially bring [DaSilva] up on department charges" if he was harassing plaintiff, but that she would give plaintiff the weekend to decide how to handle the situation. (County 56.1 ¶ 12.) The following Monday, Gruntorad gave plaintiff a copy of the NCSD's anti-harassment and discrimination Standard Operating Procedure ("SOP") and told him that he should file a complaint if DaSilva had violated the SOP. (County 56.1 ¶ 13.) Over the next day or two, plaintiff conveyed to Gruntorad some specific allegations of harassment by DaSilva, and she ordered plaintiff to provide her with a report of his allegations. (County 56.1 ¶ 14.)

Complying with Gruntorad's directive, plaintiff filed an inter-departmental memorandum detailing his allegations of harassment by DaSilva on November 15, 2007. (County 56.1 ¶ 14; DaSilva 56.1 ¶ 32.) Plaintiff's memorandum alleged that DaSilva committed, inter alia, the following acts:

• telephoning plaintiff, saying that "Johnson is a dead man, " and then hanging up;
• mimicking and mocking plaintiff in front of inmates;
• drawing pictures of plaintiff giving oral sex to men;
• stuffing tree branches in the rims of plaintiff's car tires and scratching the hood of his car;
• tailgating plaintiff "honking like a maniac" while driving to work;
• pulling his gun out of his holster while smiling at plaintiff, and then tailgating plaintiff while driving;
• yelling at plaintiff in a classroom to get out of his chair, spraying the chair after plaintiff stood up, and then threatening to ram the spray can down plaintiff's throat.[3]

(Siravo Decl. Ex. B, Memorandum from Johnson to Gruntorad, Nov. 15, 2007.) None of the allegations in plaintiff's November 15, 2007 memorandum concerned racial animus. (County 56.1 ¶ 16; DaSilva 56.1 ¶ 33; see generally Siravo Decl. Ex. B, Memorandum, Nov. 15, 2007.) Plaintiff has also testified that DaSilva called him a "n***** and a monkey" during the classroom chair incident; however, plaintiff did not report this statement in his November 15, 2007 memorandum. (County 56.1 ¶ 17; see Johnson Dep. at 76, 470.)

Immediately after receiving plaintiff's memorandum, Gruntorad ordered the separation of plaintiff and DaSilva, and DaSilva's right to possess a firearm was revoked. (County 56.1 ¶¶ 18-19; DaSilva 56.1 ¶ 37.) Gruntorad then forwarded plaintiff's memorandum to her supervisor, Zuaro, who forwarded the memorandum to the Nassau County Equal Employment Opportunity office (the "County EEO") for investigation.[4] (County 56.1 ¶ 20; see Siravo Decl. Ex. C, Memorandum from Gruntorad to Zuaro, Nov. 16, 2007.)

On November 16, 2007, plaintiff met with Dr. Joseph Volker ("Volker"), an affirmative action specialist and the County EEO's representative for the NCSD. ( See Pl.'s Counter 56.1 ¶ 157.) Based upon plaintiff's inter-departmental memorandum and information provided to Volker by plaintiff, Volker completed the County EEO's initial intake form and checked off both race and sexual orientation as the bases of DaSilva's harassment. ( Id. ¶¶ 157-58; DaSilva 56.1 ¶ 36.) Volker sent the County EEO complaint to Mary Elisabeth Ostermann ("Ostermann"), who was the director of the County EEO ( see Volker Dep. at 15), and Loconsolo, who was the general counsel to the NCSD. ( See Pl.'s Counter 56.1 ¶ 161.) Thereafter, plaintiff made other complaints to Volker, which Volker forwarded to Ostermann, Loconsolo, and Sposato. ( See id. ¶ 164.)

Instead of launching a full investigation, Volker claims that the County EEO conducted only a "limited inquiry" into plaintiff's allegations. ( See Volker Dep. at 62.) According to Volker, his role in this "limited inquiry" was to handle the "immediate impact" of the alleged discrimination on the members of the NCSD, while Ostermann investigated plaintiff's complaint for bias and discrimination. ( See id. at 64-65.) Volker explained that the "limited inquiry" was "an evasion" enabling the County EEO to close cases without conducting investigations. ( See id. at 176.) Loconsolo also described the investigation as a "limited inquiry." However she testified that limited inquiries still entailed interviews of potential witnesses. ( See Loconsolo Dep. at 109.)

Twelve days after plaintiff filed his complaint, Ostermann determined that the complaint should be referred back to the NCSD because plaintiff's allegations did not concern harassment on the basis of plaintiff's membership in a protected class (e.g., race). (Pl.'s Counter 56.1 ¶ 171.) Accordingly, the County EEO referred the matter back to the NCSD for investigation on November 28, 2007. ( See County 56.1 ¶ 21; Siravo Decl. Ex. F, Memorandum from Chen to File, Nov. 28, 2007.)

Ultimately, Volker found two witnesses who corroborated plaintiff's allegation of the so-called "chair incident." (County 56.1 ¶ 23.) In particular, these witnesses confirmed that DaSilva had confronted plaintiff, forced him out of a chair, told him he stunk "like a monkey, " and called him a "f****** homo." (Siravo Decl. Ex. H, Case Analysis & Pre-Determination, Jan. 3, 2008.) Witnesses also confirmed that, just before plaintiff claimed that DaSilva had tailgated him, DaSilva rushed to his car and said, "I have to go. I have to follow Rodney." ( Id. )

Volker met with Loconsolo and NCSD Commissioner Sidney Head ("Head") to discuss his findings. (County 56.1 ¶ 24.) Loconsolo recommended that the investigation stay with her and Volker rather than proceed to the NCSD's Internal Affairs Unit ("IAU"). (Pl.'s Counter 56.1 ¶ 171.) Commissioner Head decided to send Volker's findings to Zuaro, and on March 12, 2008, Zuaro gave DaSilva a written reprimand as discipline for his actions. (County 56.1 ¶¶ 24-25; see Siravo Decl. Ex. J, Notice of Personnel Action, Mar. 13, 2008.)

2. Allegations of Harassment in 2008 and Defendants' Response

In the meantime, on January 3, 2008, plaintiff submitted another interdepartmental memorandum to McDevitt alleging that DaSilva had called him a "f****** asshole" the day before. (Pl.'s Counter 56.1 ¶¶ 72-74; DaSilva 56.1 ¶ 39.)

On April 1, 2008, plaintiff submitted two additional memoranda to Volker documenting more alleged harassment by DaSilva. (County 56.1 ¶ 26; DaSilva 56.1 ¶ 41.) In the first memorandum, plaintiff stated that DaSilva called him a "f****** asshole" on March 14, 2008. (Siravo Decl. Ex. K, Memoranda from Johnson to Volker, Apr. 1, 2008, at 1.) In the second, plaintiff averred that DaSilva drove alongside plaintiff on the Southern State Parkway making faces at plaintiff before speeding off[5] ( See id. at 2.) Plaintiff also expressed concern that DaSilva had received only a reprimand for his actions, and that if the NCSD returned DaSilva's firearm to him, DaSilva might shoot plaintiff. ( See id. ) In response to these two memoranda, Zuaro referred DaSilva to the Employee Assistance Program. (County 56.1 ¶ 27.)

On August 20, 2008, plaintiff submitted another inter-departmental memorandum in which he alleged that DaSilva had intentionally bumped him with his shoulder while the two officers were picking up their paychecks.[6] (County 56.1 ¶ 28; DaSilva 56.1 ¶ 45.) At least one witness confirmed plaintiff's version of events. (County 56.11129.) Plaintiff also filed a complaint dated August 21, 2008, with the County EEO. ( See Brewington Decl. Ex. II, County EEO Compl., Aug. 21, 2008.) The complaint alleged harassment on the basis of retaliation, but not race. ( See id. at 1; see also DaSilva 56.1 ¶¶ 55-56.)

Golio, the supervisor of the NCSD's Legal Unit, directed plaintiff to meet with Kreutz, a supervisor in the IAU. (Pl.'s Counter 56.1 ¶¶ 177, 187-88.) Plaintiff met with Kreutz on August 22, 2008. ( Id. ¶ 189.) Kreutz informed plaintiff that IAU could not assist plaintiff at that time because the County EEO was still conducting its investigation. ( Id. ¶ 190.) According to Loconsolo, however, IAU and County EEO investigations may overlap, and only she, the commander officer of IAU, or the NCSD Sheriff had the authority to end an IAU investigation due to a parallel investigation by the County EEO. ( See Loconsolo Dep. at 53-57.) Not until November 18, 2008, did Kreutz decide to investigate the August 20, 2008 incident, and IAU took two years to complete the investigation. (Pl.'s Counter 56.1 ¶¶ 198, 201.)

Meanwhile, as a result of the August 20, 2008 incident, Zuaro, Gruntorad, and McDevitt met with DaSilva and his union representative. (County 56.1 ¶ 30.) Ultimately, no disciplinary action was taken against DaSilva, but an alternative arrangement was made for DaSilva to pick up his paycheck elsewhere so that he would not cross paths with plaintiff (County 56.1 ¶ 30; see E-mail from Zuaro to Head, Sept. 5, 2008.) No further incidents occurred between plaintiff and DaSilva while they were picking up their paychecks. (County 56.1 ¶ 31.)

On September 4, 2008, plaintiff submitted additional memoranda alleging further harassment by DaSilva. (County 56.1 ¶ 32.) In one memorandum, plaintiff claimed that DaSilva had followed him into a Walmart parking lot and waited behind him for several minutes. ( Id. ¶ 32; DaSilva 56.1 ¶ 49; Siravo Decl. Ex. N, Memoranda from Johnson to Gruntorad, Sept. 4, 2008, at 1.) In the second memorandum dated September 4, 2008, plaintiff complained that while he was leaving work and merging onto the Southern State Parkway, DaSilva raced past him and almost cut him off[7] (County 56.1 ¶ 32; DaSilva 56.1 ¶ 46; Siravo Decl. Ex. N, Memoranda, Sept. 4, 2008, at 2.) Plaintiff testified that he had complained to Zuaro about DaSilva almost running him off the road, but that Zuaro said "he couldn't do anything until he [had] seen blood." (Johnson Dep. at 139-40.)

Plaintiff had another incident with DaSilva on August 29, 2008, which he memorialized in a separate interdepartmental memorandum to Kreutz dated September 8, 2008. ( See Johnson Dep. at 160-64; DaSilva 56.1 ¶ 51; Pl.'s Counter 56.1 ¶¶ 92-98.) In this memorandum, plaintiff alleged that the rear passenger side of his car had been hit by another car while parked in the NCSD parking lot. (Pl.'s Counter 56.1 ¶ 92; DaSilva 56.1 ¶ 51). The blue residue on plaintiffs car was very similar to the blue paint on DaSilva's car, and numerous correction officers had witnessed DaSilva painting his car around the same time that plaintiffs car was hit. (Pl.'s Counter 56.1 ¶¶ 92-96.)

On August 1, 2008, plaintiff filed a complaint with the County EEO documenting his allegations contained in his inter-departmental memoranda dated from January 3, 2008, through September 8, 2008. (DaSilva 56.1 ¶ 54.)

On September 23, 2008, DaSilva was transferred out of the Rehabilitation Unit to the Security Unit. (County 56.1 ¶ 34.) Zuaro testified that he transferred DaSilva to the Security Unit so that DaSilva would receive closer supervision. (County 56.1 ¶ 35.) The next incident between plaintiff and DaSilva did not occur until December 17, 2009- over one year after DaSilva's transfer. (County 56.1 ¶¶ 36, 40.)

3. Allegations of Harassment in 2009

Sometime in 2009, plaintiff was transferred from the 832 Law Library to the Core Law Library at his request. (County 56.1 ¶ 37.) As plaintiff explained in his deposition, he told Gruntorad that he was "burnt out" from his assignment to the 832 Law Library, which had involved dealing with eighty to one hundred inmates per day. ( See Johnson Dep. at 186-87, 193.) By contrast, a correction officer assigned to the Core Library dealt with approximately ten inmates per day. ( See id. at 186-87.) Indeed, plaintiff testified that he went through five partners in three years while assigned to the 832 Law Library. ( See id. at 188.)

Plaintiffs placement in the Core Law Library put him in a position to have more contact with DaSilva, however. (County 56.1 ¶ 52.) On December 17, 2009, plaintiff claims that he encountered DaSilva in the Core Courtyard, and that DaSilva called him a "cock sucking n*****" and said that his "mother was a whore." (County 56.1 ¶ 40.) According to an inter-departmental memorandum submitted by plaintiff on December 18, 2009, DaSilva continued calling plaintiff a n***** and threated to "kick [his] ass." (Siravo Decl. Ex. P, Memorandum from Johnson to McDevitt, Dec. 18, 2009.) Plaintiff also filed a complaint with the County EEO on December 18, 2009, alleging the same conduct and claiming harassment on the basis of his race, color, and sex. ( See DaSilva 56.1 ¶¶ 60-61; Brewington Decl. Ex. HH, County EEO Compl., Dec. 18, 2009.)

Plaintiffs December 18, 2009 memorandum was referred to the IAU for an investigation. (County 56.1 ¶ 41.) Plaintiff stated that he would provide a statement to investigators if ordered to do so; in response, he was told that he would not be ordered to give a statement. (County 56.1 ¶ 42-43; Pl.'s Reply 56.1 ¶ 42; see Siravo Decl. Ex. Q, NCSD IAU Case Narration, June 21, 2010.) Because plaintiff did not give a statement and DaSilva denied the allegations, the IAU closed the investigation. (County 56.1 ¶ 43; see Siravo Decl. Ex. Q, NCSD IAU Case Narration, June 21, 2010.)

4. Allegations of Harassment in 2010 and Plaintiff's Transfer to the 832 Law Library

Plaintiff submitted yet another interdepartmental memorandum alleging harassment by DaSilva on January 11, 2010. (County 56.1 ¶ 44.) In this memorandum and in his deposition testimony, plaintiff claims that DaSilva spit toward him. (County 56.1 it 44; Johnson Dep. at 215.)

In response to plaintiff's January 11, 2010 memorandum, Gruntorad requested reports from all possible witnesses and referred the memorandum to the IAU. (County 56.1 ¶¶ 46-47.) Correction Officer Darryl Evans, whom plaintiff had identified as a possible witness to the incident, stated that he had heard "what appeared to be a spitting sound." ( See Siravo Decl. Ex. S, NCSD IAU Case Narration, June 21, 2010.) Ultimately, however, the IAU closed the case as "not sustained." (County 56.1 ¶ 50.)

On January 12, 2010, Gruntorad transferred plaintiff back to the 832 Law Library. Gruntorad testified that she transferred plaintiff to avoid further incidents between plaintiff and DaSilva, and because many other transfers were made at the same time. (County 56.1 ¶¶ 53-54; Pl.'s Reply 56.1 ¶¶ 53-54; see Gruntorad Dep. at 248.) An e-mail from Gruntorad to her supervisor explained that she transferred Johnson because she wanted to separate him from DaSilva and needed to make room in the Core Library for someone else. ( See Siravo Decl. Ex. T, E-mail from Gruntorad to Rogers, Jan. 22, 2010.) Plaintiff claims that Gruntorad transferred him back to the 832 Law Library as retaliation for his complaints about DaSilva, as he described the 832 Law Library as a "burnout post." ( See Pl.'s Reply 56.1 ¶ 53; Johnson Dep. at 186, 254.) Plaintiff's salary, benefits, title, and schedule remained unchanged, and he had no additional encounters with DaSilva after the transfer. (County 56.1 ¶¶ 55-57.)

Plaintiff complained of his transfer to Gruntorad in two inter-departmental memoranda dated March 17, 2010. (County 56.1 ¶ 60.) In the first memorandum, plaintiff requested to be transferred out of the 832 Law Library, explaining that he had already served for three years in the 832 Law Library, and that the 832 Law Library was known as a "burnout post, " "punishment assignment, " and "the least desirable post in the entire unit." (Siravo Decl. Ex. V, Memoranda from Johnson to Gruntorad, Mar. 17, 2010, at 1.) In the second memorandum, plaintiff expressed his belief that he was not being treated fairly and that he was assigned to the 832 Law Library as retaliation for his prior complaints. ( Id. ...

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