United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, United States District Judge
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.
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.
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.)
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.)
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.)
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.
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.)
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.
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.
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.
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
Statute of Limitations
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
to toll the statute of limitations. See Plumey, 389
F.Supp.2d at 497.
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.
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).
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." 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.
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,
Section 1983 Hostile Work Environment Claim
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).
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.
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 ...