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Cole v. State, Department of Corrections

United States District Court, N.D. New York

March 30, 2017

LISA COLE, Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONS; SUPERINTENDENT RICKEY BARTLETT, in his official capacity and individually; SERGEANT DONALD HORTON, in his official capacity and individually; LIEUTENANT BILL REYNOLDS, in his official capacity and individually; and CAPTAIN HARRY HETRICK, in his official capacity and individually, Defendants.

          TULLY RINCKEY PLLC Attorneys for Plaintiff

          OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL Attorneys for Defendants

          OF COUNSEL KELLY A. MAGNUSON, ESQ., MICHAEL W. MACOMBER, ESQ., JOHN F. MOORE, AAG

          MEMORANDUM-DECISION AND ORDER

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

         I. INTRODUCTION

         Pending before the Court are Defendants' motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure, see generally Dkt. No. 11, and Plaintiff's cross-motion for leave to amend her complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure, see generally Dkt. No. 17. In her proposed amended complaint, Plaintiff alleges that each individual Defendant violated her constitutional right to equal protection under the law and that Defendant Department of Corrections and Community Supervision ("DOCCS") discriminated against her in violation of Title VII.

         II. BACKGROUND

         Plaintiff started working as a correctional officer on May 3, 2004. See Dkt. No. 17-2 at ¶ 18. Plaintiff achieved the rank of Sergeant on February 6, 2012. See id. at ¶ 19. Plaintiff began working at the Willard Drug Treatment Facility ("Willard") on June 3, 2013, see id. at ¶ 17; and she claims that she was immediately subject to harassment after her transfer, see id. at ¶ 23. For example, starting in July 2013, Plaintiff began finding blank copies of a "Security Employee Request Transfer" form in her work mailbox. See id. at ¶ 36.

         Furthermore, Plaintiff asserts that, in June 2013, Defendant Reynolds asked her if she would like to "go out sometime." See Id . at ¶ 28. When Plaintiff declined, stating she was married, Defendant Reynolds asked if she were "happily married?" See Id . Sometime later, Defendant Reynolds told her, "You know if things don't work out with your husband the offer still stands." See Id . Plaintiff claims that, beginning in September 2014, Defendant Reynolds denied her time-off requests. See Id . at ¶ 32. Plaintiff also alleges that, in December 2014, Defendant Reynolds stated, "See I knew you could handle it, you're a woman. Women are good at multi-tasking." See Id . at ¶ 23d.

         Plaintiff alleges that Defendant Horton made several inappropriate statements to her. See Id . at ¶ 23. In June 2013, Defendant Horton stated to Plaintiff, "Must be nice, you've only been here a few days and the Department is sending you off to training. I guess that is what happens when you're a woman and the Dep's kid." See id. at ¶ 23a. Further, in June 2013, Defendant Horton stated to Plaintiff, "What makes you qualified to run a study group? . . . I don't kiss the administration's ass! Looks like we have another fucking Grimes." ("Grimes" refers to Carol Grimes, a female sergeant who previously worked at Willard). See id. at ¶ 23b. Finally, in October 2013, Defendant Horton stated to Plaintiff, "I don't give a fuck. No one's going to listen to you . . . because you're a woman." See Id . at ¶ 23c. Defendant Horton also allegedly told officers to disregard Plaintiff's memos. See Id . at ¶ 37.

         Moreover, in January 2015, someone tried to break into Plaintiff's personal locker, there was an unknown substance on the back of Plaintiff's padlock, and someone wrote "fuck Cole" on the inside of a mess hall desk drawer. See Id . at ¶ 39a-c.

         Plaintiff wrote a sixteen-page complaint to "McCarthy" in January 2015 detailing her allegations of discrimination and harassment. See Id . at ¶ 29. According to Plaintiff, no action has been taken to address her complaints. See id.

         On March 1, 2015, Defendant Reynolds wrote Plaintiff a letter informing her that she was not performing her job efficiently. See Id . at ¶ 31. Also in early March, multiple officers mimicked Plaintiff's voice and words. See Id . at ¶ 38.

         According to Plaintiff, the acts of retaliation peaked on March 19, 2015. See Id . at ¶ 33. On that date at approximately 1:55 p.m., Plaintiff returned a calculator she had used; and Defendant Horton "immediately picked up the calculator, looked directly at [Plaintiff] and threw the calculator violently against the wall." See Id . at ¶ 33b. Plaintiff confronted Defendant Horton by saying, "Can't you just be professional for one minute?" See Id . at ¶ 33c. Defendant Horton "aggressively" told her that if she "didn't like it then go report it to the captain." See Id . at ¶ 33d. This event took place the afternoon before the Office of Diversity Management ("ODM") was scheduled to interview Defendant Horton, Defendant Reynolds, and Plaintiff regarding Plaintiff's January complaint. See id.

         Plaintiff walked away from the scene and proceeded to Defendant Hetrick's office where she began to cry and shake. See Id . at ¶ 33e. A nurse arrived, discovered Plaintiff's blood pressure was 170/120, and recommended that Plaintiff see a physician. See Id . at ¶ 33f. According to Plaintiff, Defendant Hetrick gave her three options: "(1) [t]o have Willard staff drive her so she could get medical attention; (2) [t]o have someone come and get her, or (3) . . . [to] leave on her own." See id. at ¶ 33h.

         Plaintiff decided to have Willard staff drive her to get medical attention. See Id . Plaintiff then asked to speak to a union representative, and Defendant Hetrick told Plaintiff that Defendant Horton was the only union representative who was available. See id. at ¶ 33i. Defendant Hetrick then left the room, and Plaintiff called the nurse and said she had requested medical attention but was denied. See Id . at ¶ 33j. Defendant Hetrick came back to the room and told Plaintiff to sit down. See Id . at ¶ 33k. Plaintiff attempted to dial the nurse again and attempted to use her radio unit but was told to stop. See Id . Plaintiff was told to stay in the office, was denied medical attention, and was required to be escorted to the bathroom. See Id . at ¶ 33l-q. Then, at 3:45 p.m., a union representative and an ambulance arrived and escorted Plaintiff out of the facility to go to a hospital. See id. at ¶ 33s-u.

         After Plaintiff was released from the hospital, she attempted to return to Willard to file a grievance but was denied access to the building and forced to file the grievance in the parking lot. See id. at ¶ 34. Further, according to Plaintiff, she was denied worker's compensation leave, citing a "pre-existing condition" with no evidence that she had a pre-existing condition. See id. at ¶ 35.

         Plaintiff transferred to the Auburn facility in May 2015.[1] See Id . at ¶ 40. Immediately after her transfer, Lieutenant Quinn (not a defendant in this action) told her that "females don't work the SHU at this facility." See Id . at ¶ 24. Further, on July 25, 2015, Sergeant Vanfleet (also not a defendant in this action) told Plaintiff, in a hostile manner, "I know who you are and where you come from. Get out of here." See id. at ¶ 43. On November 20, 2015, Plaintiff noticed inappropriate graffiti on the walls pertaining to a male sergeant, "Moe, " who had been suspended for sexually harassing and stalking a female officer. See Id . at ¶ 44. The graffiti stated: "Bring back Moe, " "Moe's in Love, " "Jihad Moe, " and "Full out ejaculation." See id. at ¶ 45. After seeing this graffiti, Plaintiff became upset and tried to leave; but Lieutenant Quinn blocked her exit; and, after she finally was permitted to leave, he refused to allow her back in the room. See Id . at ¶ 46. Moreover, on November 24, 2015, as Plaintiff entered her supervisor's office, seven male officers rose simultaneously and walked out the door together; one called Plaintiff a "rat" as they exited, and Sergeant Dillalo stared Plaintiff down. See Id . at ¶ 47. On Friday, December 18, 2015, Plaintiff discovered dozens of flyers posted around the prison depicting numerous images: one flyer depicted a figure dressed as a sergeant, another depicted three skulls. See id. at ¶ 49. The flyers included statements such as: "I saw nothing, " "I know nothing, " "I say nothing." See Id . The flyers promoted not speaking to investigators or making complaints. See id. The flyers remained on the walls for an entire weekend until Plaintiff reported the flyers to DOCCS legal counsel. See Id . at ¶ 52. Finally, on December 29, 2015, a sergeant from Willard approached Plaintiff's daughter at a social event. See id. at ¶ 53.

         Plaintiff filed the instant action on July 20, 2015. See Dkt. No. 1. Plaintiff's original complaint raised three causes of action.[2] First, Plaintiff raised a § 1983 claim alleging discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. See id. at ¶¶ 37-42. Second, Plaintiff raised a § 1983 claim alleging retaliation in violation of the Equal Protection Clause of the Fourteenth Amendment. See id. at ¶¶ 43-51. Finally, Plaintiff raised a § 1983 claim alleging hostile work environment in violation of the Equal Protection Clause of the Fourteenth Amendment. See id. at ¶¶ 52-57. Furthermore, in her complaint, Plaintiff stated that she was

simultaneously filing a complaint with the Equal Employment Opportunity Commission [("EEOC")] alleging gender discrimination, sexual harassment, retaliation and hostile work environment. [Plaintiff] intends to amend the instant matter to include additional causes of action under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, et. seq., once all administrative remedies have been exhausted.

See id. at ¶ 52.

         Plaintiff subsequently filed a charge with the EEOC on November 3, 2015, see Dkt. No. 17-4, and received a right to sue letter on February 4, 2016, see Dkt. No. 17-5.

         Defendants filed a motion to dismiss on October 30, 2015. See Dkt. No. 11. Plaintiff requested two extensions of time to respond to Defendants' motion to dismiss. See Dkt. Nos. 13, 15. In Plaintiff's second request, she asked for leave from the Court to file an amended complaint to include claims against new supervisors based on continuing discrimination she experienced at the Auburn facility and to include additional causes of action based on Title VII after she received her right-to-sue letter from the EEOC. See Dkt. No. 15. The Court directed Plaintiff to file a cross-motion for leave to amend and a response to Defendants' motion to dismiss by February 12, 2016. See Dkt. No. 16.

         On February 12, 2016, Plaintiff moved for leave to file an amended complaint. Plaintiff's proposed amended complaint made several changes to her original complaint. First, Plaintiff did not include any § 1983 Equal Protection claims against Defendant New York State Department of Corrections and Community Supervision ("DOCCS"), conceding Defendants' argument that the Eleventh Amendment to the United States Constitution barred these claims. See Dkt. No. 18 at 2. Second, Plaintiff did not include any claims against Defendant Bartlett. See id. Third, Plaintiff added two new claims pursuant to Title VII against Defendant DOCCS. Fourth, Plaintiff included new factual allegations related to events that had occurred after she filed her original complaint. Finally, she clarified against whom she alleged each § 1983 cause of action.

         Thus, Plaintiff's proposed amended complaint asserts the following claims: (1) a § 1983 gender discrimination and hostile work environment claim against Defendant Horton, see Dkt. No 17-2 at ¶¶ 59-64; (2) a § 1983 retaliation claim against Defendants Horton, Reynolds, and Hetrick, see Id . at ¶¶ 65-73; (3) a § 1983 hostile work environment and quid pro quo harassment claim against Defendant Reynolds, see Id . at ¶¶ 74-77; (4) a discrimination and hostile work environment claim under Title VII against Defendant DOCCS, see Id . at ¶¶ 78-85; and (5) a retaliation claim under Title VII against Defendant DOCCS, see Id . at ¶¶ 86-91.

         III. DISCUSSION

         A. Plaintiff's motion for leave to amend her complaint

         A court should grant leave to amend a pleading "when justice so requires." Fed.R.Civ.P. 15(a)(2). However, "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . [or] futility of amendment" will serve to prevent an amendment prior to trial. Foman v. Davis, 371 U.S. 178, 182 (1962).

         Substantively, Plaintiff seeks leave to amend her complaint to bring claims pursuant to Title VII against Defendant DOCCS for acts of discrimination she alleged in her original complaint and for additional acts of discrimination that allegedly occurred after she filed this action. See Dkt. No. 17-6 at 3.

         Defendants make several arguments in opposition to Plaintiff's motion for leave to amend. First, they argue that Plaintiff has unilaterally dropped Defendant DOCCS from the complaint and that Plaintiff's motion for leave to amend her complaint to include Title VII charges against DOCCS is really an attempt to join a new party and add new claims. See Dkt. No. 19 at 6-7. This argument is without merit. Plaintiff does not seek to add new defendants; DOCCS is already a party to this action. Rather, she seeks to add new claims, and abandon other claims, against Defendant DOCCS.

         Defendants' argument that leave to amend would unfairly prejudice them is also without merit. There will be no undue delay because Defendants reiterated and referenced arguments made in their original motion to dismiss in response to the proposed amended complaint; thus, there is no need for further briefing. In addition, Defendants contend that the Court should deny the motion for leave to amend because the new factual allegations in the proposed amended complaint involve a new facility and new claims under Title VII. See Dkt. No 19 at 5-8. Although true, this does not preclude the Court from granting Plaintiff's motion for leave to amend, especially where the new claims apply to a pre-existing defendant, are based on retaliation after Plaintiff filed her original complaint, and the original complaint includes an express statement that an amendment would be forthcoming upon obtaining a right-to-sue letter. See Dkt. No 1 at ¶ 52. For all these reasons, the Court finds that there will be no prejudice to Defendants if the Court allows Plaintiff to amend her complaint.

         The Defendants' remaining arguments focus on the merits of Plaintiff's claims and assert that any amendment would be futile. "Where a plaintiff seeks to amend [her] complaint while a motion to dismiss is pending, a court 'has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion as moot to considering the merits of the motion in light of the amended complaint.'" Hamzik v. Office for People with Developmental Disabilities, 859 F.Supp.2d 265, 273-74 (N.D.N.Y. 2012) (quotation omitted). In this case, because Defendants have addressed Plaintiff's proposed amended complaint in their reply, the Court grants Plaintiff's motion for leave to amend her complaint and will consider the merits of Defendants' motion in light of the proposed amended complaint.

         B. Preliminary issues

         1. Jurisdiction over facts not alleged in Plaintiff's EEOC charge

         There is a preliminary question of whether this Court has jurisdiction over any Title VII claims stemming from Plaintiff's allegations about what occurred at the Auburn facility because she did not include those incidents in her EEOC charge. Plaintiff's EEOC charge includes the same facts alleged in the original and proposed amended complaint regarding what occurred at the Willard facility up to and including Plaintiff's return to Willard to file a grievance after the March 19, 2015 incident. See Dkt. No. 17-4. However, the EEOC charge does not allege any facts about anything that occurred after March 2015, including any facts related to what occurred at the Auburn facility. See id.

         "[J]urisdiction exists over Title VII claims only if they have been included in an EEOC charge 'or are based on conduct subsequent to the EEOC charge which is "reasonably related" to that alleged in the EEOC charge.'" Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002) (quotation omitted) (emphasis added). "Subsequent conduct is reasonably related to conduct in an EEOC charge if: [1] the claim would fall within the reasonably expected scope of an EEOC investigation of the charges of discrimination; [2] it alleges retaliation for filing the EEOC charge; or [3] the plaintiff 'alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.'" Id. (quoting Butts v. City of N.Y. Dep't of Hous. Preservation and Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993)).

         In this case, most of Plaintiff's allegations regarding her treatment at the Auburn facility happened after she filed her EEOC charge on November 3, 2015. Although Plaintiff labels these actions as "ACTS OF RETALIATION POST LAWSUIT FILING, "[3] in effect they are acts of retaliation post-EEOC charge. See Dkt. No 17-2 at 12. Therefore, the Court can properly consider the allegations regarding incidents that occurred after ...


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