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Stepney v. Rochester Housing Authority

United States District Court, W.D. New York

June 25, 2018





         Plaintiff Monica Stepney (“Plaintiff”) brings this employment discrimination claim against Defendants Rochester Housing Authority (“RHA”), Jackie Milne, Nicole Allen, Sandy Whitney, and Dan Sturgis under Title VII of the Civil Rights Act of 1964. On March 17, 2016, Plaintiff moved for leave to proceed in forma pauperis (“IFP”). ECF No. 2. On June 13, 2017, Plaintiff again moved for leave to proceed IFP. ECF No. 6. On November 26, 2017, the Court granted Plaintiff's IFP motion and directed the U.S. Marshals Service to serve Defendants. ECF No. 8. On November 7, 2017, RHA, Nicole Allen, and Sandy Whitney moved to dismiss the Complaint. ECF No. 15. On December 22, 2017, Jackie Milne also moved to dismiss the Complaint. ECF No. 18. Finally, on January 16, 2018, Plaintiff responded to RHA, Sandy Whitney, and Nicole Allen's Motion to Dismiss by seeking to add additional facts and defendants to her suit. ECF No. 21. For the reasons stated below, RHA, Nicole Allen, and Sandy Whitney's Motion to Dismiss is GRANTED in part and DENIED in part. Defendant Jackie Milne's Motion to Dismiss is GRANTED. The claim against Dan Sturgis is DISMISSED sua sponte. Lastly, Plaintiff's Motion to Supplement is DENIED.

         BACKGROUND [1]

         Plaintiff began working for RHA, a Section 8 and public housing agency, as a housing specialist in 2006. She alleges that Defendants-the RHA and various coworkers there- “worked in conjunction together for the common and sole purpose to go after [her]self and others that are biased against due to race, etc. All scenarios overlap because of this and how they collectively agree to target people.” ECF No. 1 at 5. Specifically, Plaintiff seems to allege that white employees were allowed to come to work late and leave early while she and other black workers were discouraged from doing so. Additionally, Plaintiff's emails indicate that she was singled out for using Facebook at work, while other employees were allowed to use Facebook and play golf in the hallway during work hours. White managers also insulted her and other black workers. Plaintiff's submissions also include emails wherein she alleges that she was treated differently than white employees. For instance, in March 2013, Plaintiff alleged to another coworker in an email that she was inadequately trained, and that she was forced to take a training test that the person she trained with did not have to take. ECF No. 3 at 22.

         In December 2014, Plaintiff joined other black employees in writing an anonymous letter to the RHA's Board of Directors that disclosed racist incidents at RHA. In response to the letter, RHA's Interim Executive Director Shawn Burr hired an outside investigative services consultant to perform an internal investigation. In December 2015, Burr sent an all-staff email to RHA stating that the outside investigator recommended that RHA draft and adopt a diversity and inclusion policy and increase the diversity of RHA's management. In January 2016, Defendant Jackie Milne, then RHA Director of Human Resources, was placed on administrative leave and terminated for cause. Although Plaintiff's submissions are not entirely clear on this point, she seems to suggest that Defendants retaliated against her for her role in the anonymous letter and for otherwise complaining about racial discrimination. She also alleges that she was “retaliated against by Dan Sturgis and Nicole Allen due to push back [she] was giving after being forced to do the work of a favored white employee.” ECF No. 3 at 4.

         On January 9, 2015, Plaintiff filed a discrimination charge with the U.S. Equal Employment Opportunity Commission (“EEOC”). The Court does not know the specific allegations that Plaintiff filed with the EEOC, because Plaintiff did not submit a copy of the charge, but Plaintiff did submit the Dismissal and Notice of Right to Sue form the EEOC sent her. See ECF No. 1 at 8. The letter stated that, while Plaintiff had a “good initial case for hostile work environment, ” ultimately, her claims were not “severe or persuasive and it's hard to identify race as a basis of the harassment.” Id. Additionally, some of Plaintiff's “complaints of discrimination seem[ed] frivolous.” Id. The investigator found even less evidence of violations based on harassment, retaliation, or a pattern or practice of discrimination. Id. Based these findings, the EEOC was “unable to conclude that the information obtained establishe[d] violations of” Title VII. Id. at 10. Plaintiff alleges that the EEOC “got it wrong” and that her case is “far from frivolous.” ECF No. 3 at 4.[2]

         In August 2016, John Hill became RHA's new executive director, Rashondra Martin became the new head of RHA's Human Resources department, and Cynthia Herriott filled the newly-created Compliance, Diversity, and Inclusion Officer position. See Press Release, RHA, Rochester Housing Authority Appoints Executive Director and Strategic Leadership Team (Aug. 10, 2016).[3] Plaintiff alleges that Martin and Herriott, along with other RHA employees Pierre Dorancy, Shawanna Lawrence, and Melissa Santiago “obtained confidential information” that Plaintiff “was a whistleblower who reported them to HUD, OIG, and the FBI after learning of the fraudulent activities that were going on between Executive Management and RHA.” ECF No. 21 at 1. According to Plaintiff, the abovementioned “new people, all black except 1 or 2, came in and started hiring their relatives, abusing the RHA credit card, overlooking conflict of interests again and again, firing the whites and calling them token whites while making them fear for their jobs.” Id. Additionally, Plaintiff claims “proof of fraud, collusion, mismanagement of government funds, embezzlement” and that the “new regime has been ‘lining their pockets' and using RHA as their own personal bank.” Id. at 4. Plaintiff and some of her coworkers “contemplated filing a class action lawsuit” related to these allegations. Id. According to Plaintiff, when “Rashondra Martin and company got wind of” the potential lawsuit and Plaintiff's whistleblowing to various federal agencies, they “set out to harass [her], retaliate against [her]” and “ultimately have [her] fired.” Id.

         On June 13, 2017, Plaintiff was fired from RHA. ECF No. 5. Paperwork from RHA documenting the reasons for Plaintiff's termination, which she submitted to the Court, indicate that Plaintiff violated the RHA attendance policy by missing 36% of her working days and calling in her absences at the last minute, making it difficult to find a coworker to cover her appointments with the tenants who RHA served. ECF No. 7 at 3. Additionally, the RHA report states that Plaintiff had not met minimum benchmarks for her job. Id. Finally, the form states that Plaintiff abused RHA's computer policy in several ways. Id. First, she used her work email address for personal accounts. Additionally, over “the course of the previous 90 days, ” Plaintiff “spent approximately 64.8 hours using the Internet for personal use.” Id. According to the report, the “most visited site categories include wedding/event planning, personal finances, personal research, research of [] fellow RHA staff, social media, video streaming, news, gambling, job hunting, home hunting, chatrooms and shopping.” Id.

         Plaintiff in turn described RHA's report as “a retaliatory measure and witch hunt with alternative facts, ” and alleges that Rashondra Martin fabricated the report. ECF No. 21 at 9, 11. She also suggested in a letter to the New York State Unemployment Office that “[p]art of [her] job was to look on the [I]nternet while helping participants with housing issues and sometime[s] a lot of spam would get through if the system was having issues.” ECF No. 21 at 11. She also complains that Martin had staff member Melissa Santiago cancel her health insurance immediately in an attempt to “stop [Plaintiff] from picking up [her] medication” and prevent her from visiting her doctors. Id.


         I. RHA, Nicole Allen, and Sandy Whitney's Motion to Dismiss

         A. Timely Service

         Defendants RHA, Nicole Allen, and Sandy Whitney move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(5), which provides for dismissal of a claim if service of process was not timely made in accordance with Rule 4(m). DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 64 (S.D.N.Y. 2010). Rule 4(m) requires plaintiffs to serve defendants within 90 days after the complaint is filed. Fed.R.Civ.P. 4(m). A defendant's objection to service “must be specific and must point out in what manner the plaintiff has ...

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