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Perry v. Slensby

United States District Court, S.D. New York

February 28, 2018

KEVIN PERRY, Plaintiff,

          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge

         Plaintiff Kevin Perry ("Plaintiff) filed this action against Captain Robert Slensby ("Defendant") under 42 U.S.C. § 1983 ("Section 1983" or "§ 1983"), alleging gender-based sexual harassment in violation of the Equal Protection Clause of the Fourteenth Amendment. Plaintiff claims that Defendant's alleged behavior over a period of about two years constituted sex-based workplace discrimination that resulted in a hostile work environment for Plaintiff. Defendant now moves to dismiss with prejudice Plaintiffs first amended complaint ("Amended Complaint") pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons stated below, Defendant's motion is DENIED.


         In considering a Rule 12(b)(6) motion, a court is limited to the facts alleged in the complaint and is required to accept those facts as true. See LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009). Accordingly, the following facts are taken from the Amended Complaint and are presumed to be true for purposes of this motion to dismiss.

         In 2001, Plaintiff began working as a corrections officer for the County of Westchester. (Am. Compl. (ECF No. 17) ¶ 4.) At all times relevant to this matter, Defendant served as Plaintiffs supervisor. (Id. ¶ 31.) In 2012, Plaintiff received a telephone call from Defendant, then a sergeant, while Plaintiff was at home recovering from knee surgery. (Id. ¶¶ 6-7.) Defendant made the call from the parties' workplace to conduct a work-related check. (Id. ¶¶ 5, 7.) Plaintiff did not answer the telephone because he was using the bathroom, and informed Defendant of this fact upon returning the call. (Id. ¶¶ 8-9.) Defendant responded, "Were you playing with your meat? Were you stroking your dick?" (Id. ¶ 10.) Plaintiff responded, "Excuse me?" and Defendant replied before hanging up, "I am just doing a home check, you are good." (Id. ¶ 11-12.) Plaintiff did not report this conversation because he viewed Defendant's comments as "just words." (Id. ¶ 13.)

         On July 22, 2014, Plaintiff was in jail booking with Defendant, who had been promoted to captain since the 2012 telephone exchange, when Defendant placed his hands on Plaintiffs shoulders and began massaging him. (Id. ¶ 14.) As he did so, Defendant said, "If I was a female, I would fuck the shit out of you, and I would get a strap on and go for broke up your ass." (Id. ¶ 15.) Plaintiff pushed his chair back and looked in shock at Defendant and Defendant walked away. (Id. ¶¶ 16-17.) Plaintiff reports that he was "enraged" following this incident. (Id. ¶ 18.) During the following week, again in the jail booking area, Defendant placed his hand on Plaintiff, inquiring whether he was all right. (Id. ¶ 15.) Plaintiff told Defendant he was fine and directed Defendant not to touch him again. (Id. ¶ 20.) This incident apparently took place at some point during the night shift. (Id. ¶ 14.)

         After the July 22, 2014 incident, Defendant called Plaintiff on his cell phone, inquiring when Plaintiff picked up, "You don't know my voice by now?" (Id. ¶ 21.) Plaintiff demurred and Defendant announced his identity, causing Plaintiff to disconnect the call. (Id. ¶ 22.) Defendant called back and Plaintiff did not answer. (Id. ¶ 23.)

         When Plaintiff complained about the July 22, 2014 incident, Defendant denied making "blatantly sexually suggestive" comments to Plaintiff. (Id. ¶ 25.) Plaintiff continued to have ongoing contact with Defendant, who still served as one of his supervisors. (Id.)

         Plaintiff was treated by "several" mental health professionals who determined that Plaintiff has "substantial anxiety related to the incident of July 22, 2014." (Id. ¶ 26.) One such professional concluded that Plaintiff suffered from "chronic and severe posttraumatic stress disorder and serious occupational impairment due to PTSD symptoms" relating to the episodes described above. (Id. ¶ 29.) Plaintiff has experienced substantial sleeplessness, emotional distress and anxiety and has been unable to go to work for long periods of time, with "consequent financial losses." (Id. ¶ 30.)

         Plaintiff alleges that Defendant's behavior constituted sexual harassment on the basis of Plaintiffs gender, and that it resulted in the creation of a "sexually hostile work environment" for Plaintiff, in violation of the Fourteenth Amendment. Defendant moves to dismiss the Amended Complaint in its entirety.


         On a motion to dismiss for "failure to state a claim upon which relief can be granted, " Fed.R.Civ.P. 12(b)(6), dismissal is proper unless the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell AH. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] 'not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679.

         When there are well-pleaded factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Ultimately, determining whether a complaint states a facially plausible claim upon which relief may be granted must be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.


         As a preliminary matter, Defendant asserts that the portion of Plaintiffs claim relating to Defendant's initial 2012 telephone call is time-barred and should not be considered by the Court. (Mem. Of Law In Supp. Of Mot. To Dismiss (ECF No. 19) ("Def.'s Mem.") 6.) Regardless of the Court's ruling on this issue, Defendant requests that the Court dismiss Plaintiffs Amended Complaint in its entirety because, even considering the 2012 incident, Defendant's alleged conduct does not amount to the creation of a hostile work environment in violation of Plaintiff s Fourteenth Amendment rights. Defendant avers that this conclusion is justified because (1) the conduct Plaintiff alleges was neither severe nor pervasive as a matter of law and (2) Plaintiff has failed to allege that he was sexually harassed on the basis of his gender. (Def.'s Mem. 5-9.) For the reasons discussed below, the Court agrees that the 2012 incident is time-barred but does not find dismissal appropriate as to the remaining elements of Plaintiff s claim at this stage. Furthermore, the Court does not find Defendant's argument that he is entitle to qualified immunity availing.

         A. Statute of Limitations

         "The statute of limitations for actions under § 1983 is the statute of limitations applicable to personal injury actions occurring in the state in which the federal court sits." Condit v. Bedford Cent. Sch. Dist., 2017 WL 4685546, at *7 (S.D.N.Y. Oct. 16, 2017) (internal quotation marks and citation omitted); see also Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015); Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (citing Owens v. Okure, 488 U.S. 235, 249-50 (1989)). New York law provides for a three-year statute of limitations for personal injury claims. N.Y. C.P.L.R. § 214(5). Thus, the applicable statute of limitations for Section 1983 actions arising in New York requires claims to be brought within three years. See, e.g., Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (applying three-year statute of limitations to state employee's Section 1983 claims alleging gender and race discrimination); Plumey v. New York State, 389 F.Supp.2d 491, 496-97 (S.D.N.Y. 2005) (applying the same to state employee's Fourteenth Amendment equal protection claims alleging sex discrimination). Claims outside of that time frame are barred unless there is a basis under New York state law[1] to toll the statute of limitations. See Plumey, 389 F.Supp.2d at 497.

         Conversely, the accrual of claims brought under Section 1983 is a question of federal law. See Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017). Generally, a claim will accrue once a plaintiff "knows or has reason to know of the injury which is the basis of his action." Cornwell, 23 F.3d at 703 (citing Singleton v. New York, 632 F.2d 185, 191 (2d Cir. 1980)). However, where a plaintiff has been subjected to a "continuous practice and policy of discrimination, " "the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance" of such practice and policy. Id. (quotations and citations omitted). Although the continuing violation doctrine arises from claims under Title VII of the Civil Rights Act of 1964, 42 U.S.G. § 2000e-2 et seq. ("Title VII"), it has been applied equally to Section 1983 claims within the Second Circuit. See Plumey, 389 F.Supp.2d at 498; Cornwell, 23 F.3d at 704.

         "In order to assert a continuing violation, a plaintiff must establish both (1) a policy or practice which caused the alleged discrimination, and (2) that the timely claim is continuous in time with the untimely claims." Plumey, 389 F.Supp.2d at 498 (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998). "[M]ultiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Quinn, 159 F.3d at 765 (internal quotation marks and citations omitted). The Second Circuit generally disfavors application of the continuing violation doctrine absent "compelling circumstances." See Walzer v. Town of Orangetown, 2015 WL 1539956, at *5 (S.D.N.Y. Apr. 7, 2015) (citing Plumey, 389 F.Supp.2d at 498).

         "Evidence that supports a hostile environment claim may also support the finding of a continuing violation." Meckenberg v. New York City Off-Track Betting, 42 F.Supp.2d 359, 374 (S.D.N.Y. 1999); see also, e.g., Cornwell, 23 F.3d at 704; Riedinger v. D 'Amicantino, 914 F.Supp. 322, 326 (S.D.N.Y. 1997). As the Riedinger court noted, "by its nature, a claim of 'hostile environment' discrimination turns on the existence of continuing violation."[2] Riedinger, 974 F.Supp. at 326. However, "[n]ot every sexual harassment claim will lend itself to a continuing violation theory, just as not every offensive incident will support a claim of harassment sufficient to alter the working conditions." Fitzgerald v. Henderson, 251 F.3d 345, 364 (2d Cir. 2001).

         Plaintiff commenced the instant action on November 17, 2016. He has proffered no reason the statute of limitations should be tolled; indeed, he does not address Defendant's assertion that his 2012 claim is barred anywhere in his pleadings. Further, Plaintiff has not made allegations that would persuade us to apply the continuing violation exception here. The two instances of misconduct, over a period of four years, alleged in the Amended Complaint do not support an inference of a specific discriminatory policy or practice, nor are they sufficiently continuous to find a continuing violation. See, e.g., Fitzgerald, 251 F.3d at 364 (plaintiffs assertions of uninterrupted "escalating harassment every day" over a two and a half year period presented "an apt basis for application of the continuing violation theory"); Quinn, 159 F.3d at 766 (series of incidents separated by at least a year each "sufficiently isolated in time" from each other and from timely allegations to "break the asserted continuum of discrimination"); Annis v. County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998) (discrimination allegedly suffered before and after six year gap cannot be considered continuing violation); Selan v. Kiley, 969 F.2d 560, 566-67 (7th Cir. 1992) (two-year gap between discriminatory events "negates the contention that the acts were continuous or connected"). Accordingly, Plaintiff is barred from basing his Section 1983 claim on events that allegedly took place before November 17, 2013.

         B. Section 1983 Hostile Work Environment Claim

         Plaintiff presses his claim against Defendant under Section 1983, alleging a violation of his rights under the Fourteenth Amendment. To bring an action under Section 1983, a plaintiff must assert that the defendant (1) acted under "color of state law" to (2) deprive the plaintiff of a statutory or constitutional right. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). "[S]tate employment is generally sufficient to render the defendant a state actor" who "acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." West v. Atkins, 487 U.S. 42, 49-50 (1988). An individual defendant is liable under Section 1983 only if he or she was "personally involved" in the deprivation of plaintiffs rights. Burhans v. Lopez, 24 F, Supp. 3d 375, 381 (S.D.N.Y. 2014) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Direct participation in the alleged constitutional violation suffices to demonstrate personal involvement. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (quoting Colon, 58 F.3d at 873).

         The Fourteenth Amendment's Equal Protection Clause "protects ... employees from sex-based workplace discrimination, including hostile work environments and disparate treatment." Raspardo v. Carlone, 110 F.3d 97, 114 (2d Cir. 2014). Moreover, "[s]exual harassment that rises to the level of gender discrimination is actionable under § 1983 as violative of the Fourteenth Amendment right to equal protection." Pedrosa v. City of New York, 2014 WL 99997, at *5 (S.D.N.Y. Jan. 9, 2014) (citing Amis, 36 F.3d at 254); see also Annis, 36 F.3d at 254 ("[H]arassment that transcends coarse, hostile [, ] and boorish behavior can rise to the level of a constitutional tort."). Sexual harassment claims generally fall under one of two theories. First, they may be premised on direct "quid pro quo" discrimination, in which an employer "alters an employee's job conditions or withholds an economic benefit because the employee refuses to submit to sexual demands." Carrero v. New York City Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989) (internal alterations and quotation marks omitted). Second, a claim may be based on the allegation of a hostile work environment, in which the gender-based harassment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Plaintiffs assertions implicate the latter theory.

         Section 1983 sexual harassment claims based on a hostile work environment theory are governed by traditional Title VII "hostile environment" jurisprudence. Hayut v. State Univ. of New York,352 F.3d 733, 744 (2d Cir. 2003); see also Amis, 136 F.3d at 245; Jemmott v. Coughlin,85 F.3d 61, -67. (2d Cir. 1996). Accordingly, "[c]ases interpreting hostile work environment claims under [either § 1983 or Title VII] are generally cited interchangeably." Lamarr-Arruz v. CVS Pharmacy, Inc.,271 F.Supp.3d 646 n.6 (S.D.N.Y. 2017). The ...

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