United States District Court, N.D. New York
RINCKEY PLLC Attorneys for Plaintiff
OF THE NEW YORK STATE ATTORNEY GENERAL Attorneys for
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
transferred to the Auburn facility in May 2015. 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.
filed the instant action on July 20, 2015. See Dkt.
No. 1. Plaintiff's original complaint raised three causes
of action. 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.
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.
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.
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
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.
Plaintiff's motion for leave to amend her
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).
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.
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.
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.
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
Jurisdiction over facts not alleged in Plaintiff's EEOC
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.
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:  the claim would fall within the
reasonably expected scope of an EEOC investigation of the
charges of discrimination;  it alleges retaliation for
filing the EEOC charge; or  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
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, " 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 ...