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Kenney v. State

United States District Court, S.D. New York

November 20, 2017

ISIS KENNEY, Plaintiff,



         Plaintiff Isis Kenney brings this action under Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging defendants created a hostile work environment, engaged in quid pro quo sexual harassment, and that plaintiff was constructively discharged.

         Before the Court is defendants' motion for summary judgment. (Doc. #30).

         For the reasons set forth below, defendants' motion is GRANTED IN PART and DENIED IN PART.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.


         The parties have submitted briefs, statements of fact (“SOF”), and affirmations (“Aff.”) or declarations (“Decl.”) with supporting exhibits, which reflect the following factual background.

         Beginning on November 27, 2014, plaintiff worked for the New York State Office of Children and Family Services (“OCFS”) as a Per Diem Youth Division Aide (“YDA”) at the Red Hook Residential Center (“Red Hook”), a “non-secure residential facility for youths operated by OCFS located in Red Hook, New York.” (Defs.' SOF ¶ 12).[1]

         Anthony Lucky was the Assistant Facility Director at Red Hook, and Bernard Smith was the Facility Director. On any given day, plaintiff worked under one of two Administrators on Duty (“AOD”), depending on her shift. One of these AODs was Leon Davis.

         At Red Hook, plaintiff primarily worked in the Central Services Unit (“CSU”), which is a “windowed, enclosed room located near the main entrance.” (Defs.' SOF ¶ 28). Her tasks included answering the phone, performing security checks on visitors, storing employees' keys and electronic devices, monitoring surveillance cameras, “reporting on the movements of residents within the facility, ” (id. ¶ 29), and doing “perimeter checks.” (Pl.'s SOF ¶ 20).

         From November 27 to December 31, 2014, plaintiff worked a total of sixteen shifts with Davis at Red Hook.

         Plaintiff testified that from the third day or so of her employment at OCFS, Davis began to tell her about his personal life, such as “complaining . . . about instances that were going on between him and the mothers of his children.” (Sussman Aff. Ex. 1 (“Kenney Dep.”) at 95). Soon thereafter, Davis began telling plaintiff “what he wanted and what he was looking for.” (Id.).

         Then, beginning in the second or third week of plaintiff's employment, Davis allegedly began more explicitly to sexually harass plaintiff. In particular, plaintiff alleges:

• Davis told her “he liked [her] . . . because [she] reminded him of a stripper and that [she] had the goods . . . the top, and the bottom.” (Kenney Dep. at 95-96).
• He asked plaintiff “to stand up so that he could wand [her] with the metal detector.” (Id. at 96).
• He took plaintiff to a room in the basement of Red Hook, during what Davis told plaintiff would be a “brief tour of the facility, ” and although he “did not physically touch” plaintiff, he did “com[e] very close, ” and told plaintiff “there were no cameras” in the room. (Id.).
• He asked plaintiff if she thought about him over the weekend, and told her “several times that [she] was going to get him in trouble.” (Id. at 97).
• He “would not stop coming to [her] office” and “[h]e would hang out there all day.” (Id.).
• He “mad[e] a lot of . . . sexual, inappropriate terms and express[ed] himself inappropriately toward” plaintiff. (Id.).
• He told plaintiff she was “beautiful, ” “his type, ” that he felt “a connection” with plaintiff, and that she was “the kind of woman he would want to introduce to his mom.” (Id. at 112).
• He gave her his cell phone number unsolicited. (Barkan Decl. Ex. J at 4).

         Plaintiff alleges Davis's behavior “made [her] feel extremely uncomfortable” and that she told Davis “on numerous occasions that he needed to control himself and . . . have boundaries.” (Id. at 97).

         In December 2014 or early January 2015, plaintiff had an “in-depth conversation” with Lucky regarding Davis's conduct. (Kenney Dep. at 137). In response, Lucky told plaintiff that “Mr. Davis was wrong and that Mr. Davis did not have any boundaries.” (Id. at 135).

         From January 5 to 23, 2015, plaintiff attended a full-time off-site training session for new OCFS employees. During this period, she did not work at Red Hook or have contact with Davis.

         While plaintiff was at the off-site training, the locks to the CSU room were changed. However, no other action was taken as a result of plaintiff's conversation with Lucky.

         On January 27, 2015, plaintiff returned to working at Red Hook, and she worked with Davis. Plaintiff alleges on that day, Davis instructed her to start conducting “bed checks” (Kenney Dep. at 137) and cleaning the facility (id. at 91), which had not previously been part of plaintiff's assigned duties. Plaintiff says that when she asked Davis details about how to perform bed checks, he yelled at her and told her she was being insubordinate.

         On January 28, 2015, plaintiff met with Facility Director Smith and Smith's supervisor, Facility Manager Beverly Sowersby. Plaintiff told Smith and Sowersby about Davis's conduct toward her. The same day, Sowersby reported plaintiff's allegations to OCFS's Office of Equal Opportunity and Diversity Development (“EODD”).

         On January 29, 2015, Davis was assigned to “duty at home-a form of administrative leave.” (Defs.' SOF ¶ 45). He was escorted out of Red Hook during his shift the same day.

         From January 29, 2015, through June 12, 2015, while Davis was on administrative leave, plaintiff continued to work at Red Hook.

         During this period, the EODD conducted an investigation into plaintiff's allegations. In an eight-page report dated June 12, 2015, the EODD noted that plaintiff's complaints against Davis were “concerning, ” and that plaintiff “appeared sincere and truthful in her statements alleging that [Davis]'s behavior toward her on multiple occasions made her feel uncomfortable and that supervisory boundaries were being crossed by” Davis. (Barkan Decl., Ex. J (“EODD Report”) at 8). Nevertheless, the report found plaintiff's allegations “could not be substantiated by [the] investigation” and recommended no disciplinary action be taken against Davis. (Id.). However, the report did recommend that “the program area consider providing [Davis] with supervisory guidance to reinforce appropriate boundaries with colleagues and subordinates, ” and that “management may wish to consider temporarily assigning an alternate supervisor” to ...

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