United States District Court, N.D. New York
CRUZ E. KERIN, Plaintiff,
SCHENECTADY ARC, Defendant.
Office of Patrick Sorsby, Patrick Sorsby, Esq., of counsel Albany, New York, Attorney for Plaintiff.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C. Michael J. Murphy, Esq., of counsel Albany, New York, Attorney for Defendant.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
Defendant moves (Dkt. No. 49) for summary judgment dismissing the second amended complaint (Dkt. No. 25) in this employment discrimination action based on 42 U.S.C. § 2000e-2, et seq. ("Title VII") and New York State law. As set forth below, the Court dismisses with prejudice so much of the fifth cause of action as states a common-law claim for intentional infliction of emotional distress and otherwise denies the motion. Further, the Court proposes to combine the second and third causes of action for purposes of trial.
The following background facts are undisputed unless otherwise indicated. Defendant operates residential facilities throughout Schenectady County, including a residential facility known as Pauley House. The residents of Pauley House, referred to as "consumers, " are profoundly disabled men and women who need significant assistance with all activities of daily living. At all relevant times, Brian Mulqueen, the Program Manager for Pauley House, supervised all employees of that facility. Pauley House is staffed by Direct Support Professionals ("DSPs"), who are responsible to "assist, counsel and instruct program participants in all areas of daily living" and "implement and comply with Individualized Service Plans and document daily progress on all appropriate forms in each Service Plan Book." A DSP's duties include, but are not limited to, meeting the consumers' toileting, bathing, and dressing needs, preparing and serving food, and light cleaning. According to defendant, as part of their orientation, DSPs are trained to understand "the sexual rights of... consumers and how to best provide for their safety and education." As relevant to this case, consumers have the right to engage in masturbation when alone in a private place, specifically a bathroom or bedroom.
On May 3, 2010, defendant hired plaintiff as an "Awake Overnight" DSP on a 90-day provisional basis. Among the residents of Pauley House during the time plaintiff worked there was a man (identified by his first initial "G") who is confined to a wheelchair and requires care for every aspect of daily living. G frequently masturbated, and his behavior plan makes specific reference to the behavior. This behavior had been known to cause him injury, and on May 5, 1999 G's doctor directed: "KY Jelly prn use as directed."
Defendant's Statement of Material Facts, based on certain record evidence, states: "On or about June 4, 2010, plaintiff and Mr. Mulqueen came to be in the bathroom with G. G was engaged in masturbation at this time. Mr. Mulqueen retrieved a tube of KY Jelly from G's activities of daily living... kit and demonstrated to plaintiff how KY Jelly should be provided to G."
Plaintiff's response to defendant's Statement of Material Facts, supported by her deposition testimony, includes the following:
On June 4, 2010 [plaintiff] was in the Pauley house bathroom preparing for the bathing of G. At about this time Mulqueen awakened G and brought him into the bathroom. Mulqueen ordered G to lift himself from the chair and took his depends off exposing G's genitalia to the Plaintiff. At this time Mulqueen applied KY Jelly to the penis of G. In response G began to massage his penis with both hands and began to squeal. Mulqueen told [plaintiff] she had to put the KY Jelly on G's penis because it was prescribed by the doctor and he also told her that she had to make sure he climaxed. Mulqueen then walked out of the bathroom and closed the door. He came back approximately every 15 minutes and would open the door to watch. This happened for 45 minutes.
According to plaintiff's deposition testimony, Mulqueen specifically directed her to remain in the bathroom with G during this incident, and said he would come back every 15 minutes to check on her. Plaintiff's Statement of Material Facts, based on her deposition testimony, further states:
That on June 5th 2010 Mr. Mulqueen again applied KY Jelly to the penis of "G" with [plaintiff] in the bathroom and left her there with the door shut. That Mr. Mulqueen checked on [plaintiff] 15 minutes later asking how it was going and she stated that he was still masturbating at which Mr. Mulqueen stated he would check back in another 15 minutes. That Mr. Mulqueen checked back in 15 minutes and attempted to forcibly stop G from masturbating but was unable. At this point Mr. Mulqueen said he would give G another 15 minutes. When Mulqueen returned 15 minutes later he propped the door open and was watching "G" masturbate in front of [plaintiff]. At this time Mr. Mulqueens eyes were rolled in the back of his head and he was making a motion with his hand simulating masturbation.
Plaintiff testified at her deposition: "I was paralyzed of fear that this thing is turning into something else, that he is having gratification of watching this gentleman for something that is prescribed." According to plaintiff, she believed Mulqueen's actions constituted sexual harassment. Plaintiff testified that on June 7, 2010 she told Mulqueen that her moral and religious values prevented from doing what he told her to do, and that he "gave her a dirty look, " stated, "What, you have moral standards? Bah!" and left the room.
Plaintiff states that on June 9, 2010 Mulqueen went on vacation and returned to work on June 14, 2010. On June 18, 2010, Mulqueen met with plaintiff and Bradley Deetz, a Program Manager at other residences, to discuss Mulqueen's concerns regarding plaintiff's performance. On June 22, 2010, Mulqueen authored a memo regarding the June 18, 2010 meeting, stating in part:
During your time with us you have displayed compassion and a genuine caring nature towards coworkers and consumers. However, as we have discussed on several occasions, there are ongoing concerns regarding your initiative in completion of tasks, your attendance and dependability with work and required trainings and failure to communicate essential information.
It is critical that you demonstrate dramatic improvement in these areas over the coming weeks. Failure to improve could result in disciplinary ...