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Russell v. County of Rockland

United States District Court, S.D. New York

July 26, 2017

VALERIE RUSSELL, Plaintiff,
v.
COUNTY OF ROCKLAND, et al. Defendants.

          OPINION & ORDER

          WILLIAM H. PAULEY III, District Judge

         Plaintiff Valerie Russell brings this employment discrimination action against the County of Rockland, Ed Day (in his official capacity as Rockland County Executive), Louis Falco III (individually and in his official capacity as Sheriff), and Anthony Volpe (individually and in his official capacity as Chief of Rockland County Correctional facility). She asserts claims for hostile work environment, disparate treatment, and retaliation in violation of Title VII and the NYSHRL. Defendants move for summary judgment dismissing this action. For the reasons that follow, Defendants' motion is granted in part and denied in part.

         BACKGROUND

         Russell worked as a corrections officer at Rockland County Correctional Facility from December 2011 to October 2014. (Rule 56.1 Statement of Material Facts (“56.1”), ECF No. 62, ¶ 1.)

         1. EEO Policy

         Throughout Russell's employment, Rockland County maintained an AntiDiscrimination and Equal Opportunity (“EEO”) Policy (the “Policy”), which was set forth in two executive orders. (56.1, ¶¶ 9, 98; Jan. 21, 2017 Decl. of Jill King (“King Decl.”), Exs. A and B.) The Policy prohibits sexual harassment, gender-based discrimination, and retaliation. (56.1, ¶ 10.) Individuals in violation of the Policy were subject to disciplinary action. (56.1, ¶ 11.) The Policy also provides a procedure for complaints of sexual harassment, discrimination, and retaliation. (56.1, ¶ 14; King Decl., Ex. A at 7-11.) Under that procedure, an employee has the right to meet with a representative of the Office of Employee Rights to discuss any potential claim. (King Decl., Ex. A at 7.) An individual with a claim may file a written complaint with any department head, supervisor, manager, or the Office of Employee Rights. (King Decl., Ex. A, at 8.) “Where an individual choose[s] not to file a complaint, the Office of Employee Rights reserves the right to determine” whether it “should be handled as a formal complaint.” (King Decl., Ex A at 8.) In addition, the Policy also directs all employees to report known EEO violations. (King Decl., Ex. A, at 6.)

         On her first day of employment, Russell acknowledged receiving a copy of the Policy. (56.1, ¶ 54.) Thereafter, she received training on the Policy as part of the New Staff Orientation Training Program. (56.1, ¶ 55.) In October and November 2012, she attended the “Corrections Academy, ” where she also received equal opportunity employment training. (56.1, ¶¶ 56, 58.) In December 2013, she attended the County's sexual harassment training and once again acknowledged understanding the Policy and the procedure for filing a complaint. (56.1, ¶¶ 59-60.)

         2. Hostile Work Environment

         a. Unreported or Non-Gender-Based Harassment

         Russell contends that throughout her tenure as a corrections officer, a hostile work environment pervaded the Rockland County Correctional Facility. Notwithstanding multiple purported instances of harassment, Russell rarely reported them to a “department head, supervisor, manager, or the Office of Employee Rights.” (King Decl., Ex. A, at 8.) Instead, she complained to her union, which was comprised entirely of other corrections officers. (See, e.g., 56.1, ¶¶ 90, 119, 121, 127-28, 138, 141, 156-57, 164-65, 190, 196-97.)

         In October 2012, Russell and Corrections Officer Hickey engaged in a personal feud that spilled over into the workplace. In brief, Hickey fathered a child with one of Russell's friends and, in a series of texts and Facebook messages, Russell was critical of Hickey's parenting skills. (56.1 ¶¶ 199-200.) In response, Hickey's mother filed a complaint with the Piermont Police Department against Russell and Hickey filed a memorandum with Chief Volpe, complaining of harassment by Russell. (56.1 ¶¶ 205-06.) In November 2012, Chief Volpe reprimanded Russell for making multiple disparaging comments toward Hickey. (56.1 ¶ 216.)

         Two months later, the feud erupted again. In January 2013, Hickey told an inmate where Russell lived. Russell reported that rules violation to a sergeant, who forwarded the issue to Chief Volpe. (56.1 ¶¶ 223-24.) When Hickey found out, he disparaged Russell and claimed that she was seeking to jeopardize his job because of his earlier complaint against her. (56.1 ¶ 225.) Over the next several weeks, Chief Volpe investigated Russell's allegations, including a comment by someone who purportedly overheard Hickey calling Russell a “coke whore.” (56.1 ¶¶ 226-27.) Because Chief Volpe could not verify Russell's claims, he closed the investigation. (56.1 ¶ 236.)

         In February 2013, Chief Volpe met with Hickey and Russell and told them to end the feud. (56.1 ¶ 237.) Despite the personal animus, Russell admits that Hickey did not sexually harass her, he “just harassed [her] generally.” (June 2, 2016 Deposition of Russell, Weissman Decl. (ECF No. 52), Ex. E., at 220.)

         b. Reported Gender-Based Harassment

         When Russell reported sexual harassment, the County dealt with it promptly. For instance, during training in 2011, Russell notified a sergeant that a fellow corrections officer said other corrections officers were betting on who would have sex with Russell first. (56.1 ¶ 100.) That sergeant spoke to the corrections officer who in turn apologized to Russell. (February 15, 2015 Deposition of Valerie Russell (“Russell Dep.”), Ranni Decl., Ex 17, at 151.) No further complaints on this topic were raised. (Weissman Decl., Ex. F, June 4, 2016 Deposition of Russell Dep., at 282.)

         In September 2013, at a golf outing, Corrections Officer Esposito announced to other corrections officers that Russell had slept with nine corrections officers. Russell did not learn of that comment until August 2014. (56.1 ¶ 253.) She promptly raised the issue with Lieutenant Mueller via email, who in turn forwarded it to Chief Volpe. (56.1, ¶ 258.) Chief Volpe forwarded Russell's email complaint to the EEO Office. (56.1, ¶¶ 265-66.) Days later, she visited the EEO Office and discussed the complaint with an EEO investigator. (56.1 ¶¶ 274- 77.) Thereafter, Russell filed her first written complaint. (56.1 ¶ 278.)

         The EEO Office promptly initiated an investigation, found that Esposito had engaged in sexual harassment, and recommended discipline. (56.1 ¶¶ 276-78, 284-85, 289.) Disciplinary charges were lodged against Esposito, who ultimately agreed to a suspension without pay, loss of ability to volunteer for overtime for a month and the right to bid on posts for a year, probation, and mandatory sexual harassment training. (56.1 ¶ 296.)

         3. Retaliation

         Russell filed her complaint against Corrections Officer Esposito with the EEO Office on August 28, 2014. (56.1 ¶ 585.) Russell contends that Corrections Officer Farrison told her that Sergeant Falco told him about her complaint. (56.1 ¶ 586.) However, Sergeant Falco denies making such a disclosure and Farrison does not remember any such interaction. (56.1 ¶¶ 588-90.) When Russell learned of the purported disclosure, she reported it to her union representative, Chief Volpe, and the EEO Office. (56.1 ¶ 592.) As a result of this disclosure, Russell claims confidentiality was lost and she had to relive her humiliation from the golf outing comments when those comments were re-circulated through the Corrections Facility. (56.1 ¶ 591.)

         4. Disparate Treatment

         a. Shift Switching

         On August 6, 2014 and August 13, 2014, Russell submitted requests to switch shifts with Corrections Officer Heller, a male. (56.1 ¶¶ 530, 539.) In both instances, Russell was scheduled to work the 3:00 p.m. to 11:00 p.m. shift, during which time she would be the only female officer on duty. (56.1 ¶¶ 532, 541.) Because a law required at least one female to be on duty, her requests were denied. (56.1 ¶ 534.) The second time her request was denied, the lieutenant handling the request noted that if Russell could find a female with whom to switch shifts, her request would be granted. (56.1 ¶ 544.) Because of that denial, Russell was forced ...


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