United States District Court, N.D. New York
O'HARA, O'CONNELL & CIOTOLI, STEPHEN CIOTOLI, ESQ., Attorneys for Plaintiffs, Fayetteville, NY.
THE LAW FIRM OF FRANK W. MILLER, CHARLES C. SPAGNOLI, ESQ., FRANK W. MILLER, ESQ., BRYAN N. GEORGIADY, ESQ., Attorneys for Defendants, East Syracuse, NY.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this employment discrimination action filed by Kelly Seale and David Seale ("Plaintiffs") against the above-captioned government entity and four named individuals ("Defendants"), is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 34.) For the reasons set forth below, Defendants' motion for summary judgment is granted.
I. RELEVANT BACKGROUND
A. Procedural History
Because this Decision and Order is intended primarily for the review of the parties, the Court will not recite this action's procedural history, including Defendants' motion for judgment on the pleadings, which was granted in part and denied in part. See Seale v. Madison Cnty., 929 F.Supp.2d 51 (N.D.N.Y. 2013).
B. Plaintiffs' Claims
The following claims survived Defendants' motion for judgment on the pleadings: (1) a hostile work environment claim by Plaintiff Kelly Seale ("Kelly Seale") against Defendant, Madison County ("the County") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the New York Human Rights Law, N.Y. EXEC. LAW § 296 ("NYHRL"); (2) a hostile work environment claim by Kelly Seale against Defendant, Matthew Episcopo ("Episcopo") pursuant to 42 U.S.C. § 1983 ("Section 1983"); (3) a retaliation claim by Kelly Seale against the County pursuant to Title VII; (4) a retaliation claim by Kelly Seale against the County as well as Defendants, Episcopo, Allen Riley ("Riley") and Ryan Aylward ("Aylward") pursuant to NYHRL; (5) a First Amendment retaliation claim by Kelly Seale against the County, Riley, Episcopo and Aylward; and (6) a First Amendment retaliation claim by Plaintiff, David Seale ("David Seale") against the County, Riley, Episcopo, Aylward and Defendant, Doug Baily ("Bailey").
C. Undisputed Material Facts
Unless otherwise followed by citations to the record, the following material facts have been asserted and supported by Defendants in their Local Rule 7.1 Statement of Undisputed Material Facts, and either admitted or denied without a supporting record citation by Plaintiffs in their Local Rule 7.1 Response ( compare Dkt. No. 34-1 [Defs.' Rule 7.1 Statement] with Dkt. No. 38 [Pls.' Rule 7.1 Response]), or have been asserted and supported by Plaintiffs in their Local Rule 7.1 Statement of Additional Undisputed Material Facts, to which Defendants have failed to respond ( see Dkt. No. 38 at 70-77 [Pls.' Rule 7.1 Statement]).
Kelly Seale is a former employee of the County. She was employed as the Community Services Aide at the County Sheriff's Office from January 2, 2008 until she resigned effective May 31, 2010. Kelly Seale was a part-time employee and was not entitled to vacation time, sick leave or other compensated leave. Kelly Seale's husband, David Seale, is currently employed by the County in the Sheriff's Office. David Seale began his employment as a Deputy in the Sheriff's Office in 1998. According to Sheriff Riley, David Seale was promoted to Sergeant effective August 9, 2014. ( See Dkt. No. 41-2 at ¶ 4 [Reply Aff. of Allen Riley, Aug. 22, 2014].)
Defendant Riley is the current Sheriff of the County. He was elected to that position in November 2009 and assumed office in January 2010. Defendant Bailey was employed as Undersheriff of the County from 1991 until he retired on December 1, 2010. From September 2009, when former Sheriff Ronald Cary ("Cary") resigned, until Sheriff Riley took office, Bailey performed the duties of Sheriff on an interim basis.
Defendant Aylward is currently employed as the Director of Labor Relations in the County's Personnel and Civil Service Department. He has held that position since Spring, 2010. Prior to Spring, 2010, he was employed as the County's Coordinator of Labor Relations.
Defendant Episcopo was formerly a Captain in the Sheriff's Office. He held that position from 2005 until he retired in May, 2011. According to Sheriff Riley and Undersheriff Bailey, Episcopo did not have the ability to hire, fire, promote, demote, make any decision substantially changing the salary or benefits of, or make any decision substantially reassigning the duties of any other employee of the Sheriff's Office, including Kelly Seale. (Dkt. No. 34-3 at ¶ 4 [Riley Aff., June 25, 2014]; Dkt. No. 34-5 at ¶ 2 [Bailey Aff., July 1, 2014].) Kelly Seale testified that she did not have any information, nor was she told, that Episcopo could have hired, fired, promoted, denied a promotion to, or reassigned her. (Dkt. No. 34-19 at 82:21-84:7 [Kelly Seale Dep., Oct. 30, 2013].) Plaintiff David Seale testified that Episcopo was involved in the firing of several corrections officers and deputy sheriffs throughout the years, meaning that Episcopo made recommendations to the Sheriff and Undersheriff, who usually followed his recommendations, although the Sheriff had the ultimate authority to make that decision. (Dkt. No. 37-3 at 130:11-131:8 [David Seale Dep., Oct. 31, 2013].) Bailey testified that during his twenty years as Undersheriff, he never saw a recommendation for termination or suspension, but saw recommendations for additional training. (Dkt. No. 37-6 at 15:1-24 [Bailey Dep., Apr. 9, 2014].)
At all relevant times, the County had in place a policy proscribing sexual harassment in the workplace and providing a procedure by which employees may report alleged sexual harassment. (Dkt. No. 34-32 [Ex. S to Spagnoli Aff., July 1, 2014]; Dkt. No. 34-33 [Ex. T to Spagnoli Aff.].) The County provided regular training and instruction on its sexual harassment policy to its employees, including Episcopo and Kelly Seale. (Dkt. No. 34-21 [Episcopo Dep., Apr. 7, 2014, 36:20-37:4 that he attended annual training]; Dkt. No. 34-18 [Kelly Seale 50-h Dep., June 24, 2010, 58:7-60:9 that she attended training and was told how to file a complaint].)
Kelly Seale claims that she "was subjected to repeated instances of sexual harassment, intimidation, humiliation, and discrimination by Defendant Episcopo" from "shortly after the beginning of her employment in January 2008 until January 2010." (Dkt. No. 1 at ¶ 27 [Compl.].) However, it is undisputed that prior to November 5, 2009, Kelly Seale did not state or report to any employee of the County, including her husband, that she was being sexually harassed by Episcopo.
From January 2, 2008 until November 5, 2009, Kelly Seale worked in an alcove outside the office of Episcopo in the County's Public Safety Building ("PSB").
On May 19, 2008, Episcopo placed a radio on a cabinet outside of his office and turned it on with the volume set at a high level. He told Kelly Seale it was to ensure that she could not hear conversations inside his office. He asked her if that was ok, and she did not object. Subsequently, Kelly Seale complained to then Sheriff Cary, after which Episcopo removed the radio, stating to Kelly Seale, "your radio privileges have been revoked."
In September 2008, after David Seale was taken out of work again by his doctor, Episcopo failed to timely turn in Kelly Seale's time sheet record. As a result, Kelly Seale did not receive her paycheck on schedule. According to Kelly Seale, the prior general practice had been that she filled out her time sheets and put them in Episcopo's mail slot, after which he would sign them and pass them on to payroll. (Dkt No. 37-8 [Ex. 8-F to Ciotoli Aff.].)
On October 20, 2008, Episcopo was in his office with his door shut speaking to a deputy, who had apparently returned to work while still using crutches after having been out on worker's compensation. In a loud tone of voice that Kelly Seale could hear, Episcopo stated, "This department is made up of a bunch of fucking cry-babies that can't do their jobs... [this deputy] came back early on crutches and others are still milking comp and crying that their arms hurt. If I had my way, a lot of people wouldn't have their fucking jobs and we all know who I am talking about." At that time, David Seale was out on worker's compensation for a shoulder injury. (Dkt No. 37-8 [Ex. 8-G to Ciotoli Aff.].)
On December 10, 2008, Kelly Seale discovered a pornographic snowman cartoon, lying face down on her desktop keyboard. The cartoon depicted three snowmen masturbating while they stare at a large breasted snow woman. Kelly Seale was sick and upset and went home early because she thought someone was making fun of her. She thought Episcopo left the cartoon because she always catches him staring at her breasts when he's around her. Kelly Seale was afraid to tell anyone about the cartoon because she thought no one would believe her word over Episcopo's. (Dkt No. 37-8 [Ex. 8-H to Ciotoli Aff.].) David Seale testified that at some point between 2001 and 2005, the snowman cartoon was posted on a bulletin board when he worked in investigations. It was the same cartoon that Episcopo had previously sent to David Seale and others in an email, but David Seale agreed that he does not have any information that Episcopo is the one who posted the cartoon on the bulletin board. (Dkt. No. 37-3 at 51:4-54:5 [David Seale Dep., Oct. 31, 2013].) At her deposition, Kelly Seale agreed that anyone who was in the PSB around the point in time that she discovered the snowman cartoon on her desk could have left it there and that she has no firsthand knowledge that it was Episcopo who did so. (Dkt. No. 37-17 at 73:1-8 [Kelly Seale 50-H Dep., June 24, 2010].)
On July 13, 2009, the day after Kelly Seale returned from a week's vacation, Episcopo entered his office with a deputy after first seeing Kelly Seale, and began singing in a loud voice, "The bitch is back, the bitch is back, spread her legs and eat her for a snack." Episcopo and the deputy then began saying, in a loud manner, "Red rocket. Red rocket."
On September 24, 2009, James Zophy ("Zophy") announced his intention to run for the office of County Sheriff in the 2009 election. At some point thereafter, David Seale placed a sign supporting Zophy's candidacy on the lawn of his home. Prior to that time, David Seale had not expressed his support for Zophy's candidacy. Kelly Seale was neutral with respect to Zophy's candidacy and did not personally express support for Zophy in his bid for County Sheriff.
On November 3, 2009, Riley won the election for Sheriff against Zophy.
On the day before the election, Episcopo went out of his way to talk to other employees and inform them that they should help themselves to snacks in the break room, but did not extend the same invitation to Kelly Seale. (Dkt. No. 37-8 [Ex. 8-J to Ciotoli Aff.].)
On the day after the election, Episcopo was in his office speaking loudly about Zophy to a lieutenant. Episcopo stated that he was so happy "that fucking cock sucking Zophy didn't get elected" and "I know I'm saying this loud enough so that whoever is sitting outside my door listening knows that changes are coming and they won't like it." Episcopo further stated that he was going to get rid of "those Zophy supporters one by one." (Dkt No. 37-8 [Ex. 8-K to Ciotoli Aff.].) Thereafter, Kelly Seale told Kathy Chaires, the confidential secretary to the Sheriff, about Episcopo's comments. Kelly Seale did not tell Ms. Chaires anything about sexual harassment. That same day, after Kelly Seale was no longer at work, Ms. Chaires relayed to Bailey Kelly Seales' allegations regarding the comments made by Episcopo.
On November 5, 2009, Bailey spoke to Episcopo about what had been reported the previous day. Episcopo testified that he believed Bailey further told him to stay away from Kelly Seale. (Dkt No. 34-21 at 94:3-9 [Episcopo Dep., Apr. 7, 2014].) Bailey denies telling Episcopo to stay away from Kelly Seale, but rather, he informed Episcopo that Kelly Seale was upset by the comments and that it did not matter which candidate won the election. (Dkt. No. 34-22 at 45:24-46:15 [Bailey Dep., Apr. 9, 2014].) Shortly after Bailey spoke to Episcopo, Episcopo returned to his office, followed by Ms. Chaires. As he entered his office, Episcopo stated, "it's a glorious morning, it's such a nice day, you can't wipe the smile off my face!" and then, as Ms. Chaires was leaving his office, he said "I love it!" over and over again. (Dkt No. 37-8 [Ex. 8-L to Ciotoli Aff.].)
At some time later in the day on November 5 or on November 6, 2009, Kelly Seale became aware that Ms. Chaires informed Bailey of her complaint about Episcopo. Bailey requested that Kelly Seale speak to him regarding her concerns, which she did. During that conversation, Kelly Seale reported for the first time that Episcopo was sexually harassing her. When Bailey realized that Kelly Seale was claiming sexual harassment, he informed her that the matter would be referred to the County's Personnel Department. After speaking with Kelly Seale, Bailey notified the County's Personnel Department of her complaint of sexual harassment. A few days later, representatives of the Personnel Department interviewed Kelly Seale to obtain her complaint.
At the County's request, its outside counsel engaged Public Sector Human Resource Consultants ("PSHRC"), an independent consulting firm, to conduct an impartial investigation into Kelly Seale's claims of sexual harassment. PSHRC consultant Nanette Hatch conducted the investigation. She had never spoken to Episcopo prior to the investigation. She interviewed Episcopo, Kelly Seale, David Seale, Ms. Chaires, and other employees. Ms. Hatch chose who to interview based on her own judgment, expertise, and evaluation of the evidence and witnesses. Ms. Hatch rendered a report that expressed her conclusion that there was no unlawful hostile environment created by Episcopo.
After the investigation was completed, Episcopo was removed from Kelly Seale's chain of command. Also, at some point after Kelly Seale's complaint was made and the investigation completed, some of Kelly Seale's duties having to do with the website were taken away from her. Episcopo did not take those duties from her.
Beginning November 5, 2009 until approximately January 11, 2010, Kelly Seale worked from home. On January 7, 2010, Aylward advised Kelly Seale that her complaint was unsubstantiated, but that to improve the work environment she would be allowed to report directly to Sheriff Riley rather and Episcopo and her work location would be changed.
Effective approximately January 11, 2010, Kelly Seale's assigned work location was changed from outside Episcopo's office to an office in the County Office Building ("COB"). Kelly Seale worked in that location until she resigned on May 31, 2010. During this time, Kelly Seale's time records reflect that on several occasions she worked before and after normal work hours and on weekends. Kelly Seale did not have access to the COB on nights and weekends because she was not allowed to have a key to the building. (Dkt. No. 37-5 at 49:21-50:17, 51:3-52:25 [Dep. of Allen Riley, Apr. 10, 2014].) David Seale testified to one instance when Kelly Seale was unable to get into the COB after hours to obtain her laptop and other materials and it created a problem for her. (Dkt. No. 34-20 at 178 (David Seale Dep., Oct. 31, 2013].) Kelly Seale testified that she was able to perform her job duties from home but that "it was harder." (Dkt. No. 34-19 at 90:6-8 [Kelly Seale Dep., Pct. 30, 2013].) Both Riley and Bailey were not aware that Kelly Seale contended she needed access to her work location during non-work hours.
Riley made the decision to change Kelly Seale's work location following the recommendation of Aylward, in order to allow her to avoid contact with Episcopo. At the time Riley made this decision, he had no information that Kelly Seale had made allegations that Episcopo made comments directed against her and David Seale on the premise that they were supporters of Zophy's candidacy. Aylward's sole involvement in the change of Kelly Seale's work location was to recommend that her work location be changed to avoid friction between her and Episcopo; to obtain information regarding other potential work locations; and to inform Riley that there was work space available in the County Office Building.
Riley advised Bailey of the locations he reviewed as potential work locations for Kelly Seale and Bailey advised Riley of the unavailability of at least one potential location, but Bailey had no other involvement in the change of Kelly Seale's work location, and he was not involved in the actual decision to change her work location. Moreover, Episcopo had no involvement in the change in Kelly Seale's work location.
The space in the COB was selected after a search indicated other possible locations were unavailable for various reasons, including space in the Department of Social Services building and the Public Health building. Riley testified that there was a photo room in the PSB, although it was "filled with all kind of stuff" at the time, but has since been converted into an office. (Dkt. No. 34-24 at 57:9-23 [Riley Dep., Apr. 10, 2014].) Kelly Seale testified that she had previously asked Sheriff Cary for the photo room to be her office since it was just a storage closet at the time, and that after her move to the COB, the photo room was made into an office for the SWAT team, although she does not know when the preparations for that office began. (Dkt. No. 37-2 at 90:12-21, 94:21-96:4 [Kelly Seale Dep., Oct. 30, 2013].) Kelly Seale also testified that she asked Riley to be moved into the Department of Social Services building and that she told him several times she did not want to move to the COB. ( Id., at 96:10-100:24.)
The COB was located in the same complex as the PSB where Kelly Seale previously worked, and is about two to three hundred yards from Kelly Seale's home. Other employees of the Sheriff's Office worked in the COB, although not on the basement floor where Kelly Seale's office was located.
Prior to May, 2010, Kelly Seale was assigned for her use a Chevy Tahoe owned by the County, which bore side markings identifying it as an official police vehicle. Beginning May, 2010, Kelly Seale was assigned for her use instead a green van owned by the County, which did not bear side markings identifying it as a police vehicle. Riley made the decision to change the vehicle assigned to Kelly Seale because he was concerned that a civilian employee should not be driving a marked police vehicle. While he discussed his concerns, with Bailey, Riley made the decision to change Kelly Seale's vehicle assignment. Episcopo's sole involvement in the change of Kelly Seale's vehicle assignment was to identify, at Riley's command, other vehicles in the Sheriff's Office fleet that were unmarked and would permit Kelly Seale to perform her duties. Episcopo notified Riley that the green van was the only unmarked vehicle in the Sheriff's Office fleet at that time that would permit Kelly Seale to perform her duties. Bailey and Aylward had no involvement in changing Kelly Seale's vehicle assignment.
Deputy Jay Pokorny used the green van for evidence transport before, during, and after the period in which Kelly Seale used it. He did not experience any mechanical problems with the van or find it to be dirty or to smell bad. (Dkt. No. 34-9 at ¶ 6 [Aff. of Jay Pokorny, June 19, 2014].) Neither Riley or Bailey had any information that the green van had any mechanical problems. Kelly Seale testified that the one time she used the green van, she experienced problems with the brakes where she had to keep pumping them. (Dkt. No. 37-2 at 89:6-20 [Kelly Seale Dep., Oct. 30, 2013].) In her response to Defendants' interrogatory asking for a description of any and all mechanical breakdowns of the green van that occurred during the time it was assigned to her, Kelly Seale stated "there would be motor pool and maintenance records regarding its history and breakdowns in Defendants' possession, which would have included prior problems with brakes, transmission, engine, battery and it would shake ( sic ). When Kelly Seale used this vehicle it was dirty, unclean, it smelled and it was rusty." (Dkt. No. 37-9 at ¶ 10 and Dkt. No. 37-16 at ¶ 3 [Pls.' Resp. to First Set of Interrogs. for Aylward].)
Since Kelly Seale's work station was relocated, she saw Episcopo on less than five occasions, at which times he did not say or do anything to her that was unprofessional. (Dkt. No. 34-18 at 128:10-18 [Kelly Seale 50-H Dep., June 24, 2010].)
Other than being required to attend the County's regular sexual harassment training, Episcopo was not disciplined or punished as a result of ...