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Wolongevicz v. Town of Manlius

United States District Court, N.D. New York

August 3, 2018

KERRY WOLONGEVICZ, Plaintiff,
v.
TOWN OF MANLIUS; MANLIUS POLICE DEPARTMENT; VILLAGE OF MANLIUS; MANLIUS FIRE DEPARTMENT; CAPTAIN KEVIN SCHAFER; CHIEF PINSKY; CHIEF OF POLICE FRANCIS MARLOW; INVESTIGATOR JAMES GALLUP; OFFICER ROSS CARNIE; CAPTAIN JEFF PECKINS; SGT. CHRISTOPHER CUSHMAN; BENJAMIN SCHMID; JOHN DOES and JANE DOES, Defendants.

          A.J. Bosman Bosman Law Firm, L.L.C. For Plaintiff Kerry Wolongevicz

          Sarah A. Hansen Burden, Hafner & Hansen, LLC For Defendants Town of Manlius, Manlius Police Department, Captain Kevin Schafer, Chief of Police Francis Marlowe, Investigator James Gallup, Officer Ross Carnie, Captain Jeff Peckins, and Sgt. Christopher Cushman

          David H. Walsh, IV Barth Sullivan Behr For Defendant Village of Manlius

          Jacqueline Phipps Polito Abigail L. Giarrusso Littler Mendelson, For Defendants Manlius Fire Department, Chief Pinsky, and Benjamin Schmid

          MEMORANDUM-DECISION AND ORDER

          Hon. Brenda K. Sannes, United States District Judge.

         I. INTRODUCTION

         Plaintiff Kerry Wolongevicz, a former police officer for the Manlius Police Department (“MPD”), brings this action alleging employment discrimination claims and state tort claims against Defendants Town of Manlius, MPD, Captain Kevin Schafer, Chief of Police Francis Marlowe, Investigator James Gallup, Officer Ross Carnie, Captain Jeff Peckins, and Sgt. Christopher Cushman (“Town Defendants”), Defendant Village of Manlius (“Village Defendant”), Defendants Manlius Fire Department, Chief Pinsky, and Benjamin Schmid (“Fire Department Defendants”), and Defendants John and Jane Does. Plaintiff alleges that Defendants subjected her to: a hostile work environment, disparate treatment, discrimination, and retaliation, in violation of the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 - 301 (First-Third Causes of Action); a hostile work environment and disparate treatment, in violation of the Equal Protection Clause of the Fourteenth Amendment (Fourth and Fifth Causes of Action); retaliation in violation of the First Amendment (Sixth Cause of Action); defamation, intentional infliction of emotional distress, tortious interference, and prima facie tort, in violation of New York law (Seventh-Tenth Causes of Action); and discrimination, a hostile work environment, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (“Title VII”) (Eleventh-Thirteenth Causes of Action). (Dkt. No. 4). The Town Defendants have asserted a cross-claim for indemnification and contribution against the Village Defendant, Fire Department Defendants, and John and Jane Doe Defendants. (Dkt. No. 12, ¶ 89; Dkt. No. 17, ¶ 89).

         Presently before the Court are the following motions: (1) the Village Defendant's motion to dismiss the Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. No. 13); (2) the Fire Department Defendants' motion to dismiss the Amended Complaint and the Town Defendants' cross-claim (Dkt. No. 14; Dkt. No. 22); (3) the Town Defendants' motion to dismiss the Seventh, Eighth, Ninth, and Tenth Causes of Action (Dkt. No. 18); and Plaintiff's cross-motion to amend the Amended Complaint under Rule 15 (Dkt. No. 23). For the reasons that follow, other than the Defendant Village's motion to dismiss, which is granted, the parties' motions are granted in part and denied in part.

         II. CROSS-MOTION TO AMEND

         With her cross-motion to amend, Plaintiff has submitted a proposed “Second Amended Complaint” (“PSAC”) (Dkt. No. 23-4), which she contends will “clarify and amplify, with additional factual support, existing causes of action.” (Dkt. No. 23-5, at 4). Defendants argue that the proposed amendments are futile. (Dkt. Nos. 26-28). In general, leave to amend should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Where plaintiffs seek to amend their complaint while a motion to dismiss is pending, a court ‘has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion as moot to considering the merits of the motion in light of the amended complaint.'” Haag v. MVP Health Care, 866 F.Supp.2d 137, 140 (N.D.N.Y. 2012) (quoting Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F.Supp.2d 376, 384 (D. Conn. 2008)). Since Defendants have had a full opportunity to respond to the proposed amendments, Plaintiff does not seek to add new defendants, and the primary claims remain the same, the merits of the motion to dismiss will be considered in light of the PSAC. If the claims in the PSAC cannot survive the motion to dismiss, then Plaintiffs' cross-motion to amend will be denied as futile. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (“An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).”).

         III. BACKGROUND[1]

         Plaintiff was employed as a MPD police officer from 2008 until 2016. (Dkt. No. 23-4, ¶¶ 4, 32-38). Throughout her employment, Plaintiff, a female officer, was held “to higher standards” and subjected to greater “scrutiny while . . . male officers [were allowed] to evade discipline or criticism.” (Id., ¶ 14). As detailed below, many of the individual Defendants in this case exposed her to sexually explicit discussions between male officers[2] and made degrading remarks to her based on her gender. (Id.). Despite her complaints, she received no protection from her supervisors. (Id.).

         A. MPD Investigator James Gallup

         In November 2013, while in firearms training, Defendant Gallup, “a white male, made derogatory comments about Plaintiff being a police officer, ” and “made derogatory statements about females, including comments regarding the female anatomy.” (Id. ¶ 15). During the training, Defendant Gallup “stated that he had recently ‘fucked' a drunk Le Moyne College ‘chick, '” who “was so drunk she had no idea what was going on.” (Id.). Also during the firearms training, Defendant Gallup “stated he was going to pull his dick out”; a coworker responded that “Plaintiff should pull ‘her dick out too.'” (Id.).

         Plaintiff made a complaint detailing this incident to her supervisors and told them that it had caused her distress. (Id. ¶ 16). One of the supervisors gave Plaintiff “an EAP card (employee assistance program) to contact for support.” (Id.). Plaintiff left work early and the EAP program referred her “to a therapist who met with her regularly for approximately one year due to work environment-related stress.” (Id.).

         Subsequently, Defendant Marlowe, Chief of MPD, informed Plaintiff that her complaint had been investigated, that Defendant Gallup “had received a ‘training memo,' rather than discipline” and that his discipline would be “progressive.”[3] (Id. ¶ 17). When Plaintiff asked Defendant Marlowe whether “someone had contacted Le Moyne College to check for any reports of rape, ” he responded no. (Id.). Plaintiff was not satisfied with “the investigation or the meagerness of Officer Gallup's penalty” and asked Defendant Marlowe if she could talk to the town supervisor. (Id.). “Chief Marlowe angrily instructed Plaintiff not to talk to the town supervisor” and told her “that if she spoke to anyone about the matter, including friends or other officers, that she would be the one disciplined.” (Id.). Defendant Marlowe “chastised” Plaintiff for reporting the incident “a week later” instead of immediately. (Id.). Plaintiff concluded based on Defendant Marlowe's response that her “complaint was unwelcome and ill-advised.” (Id.). Plaintiff alleges “[o]n information and belief, other women at [MPD] have complained about Officer Gallup's conduct before and after this time and those complaints were dismissed as ‘personality conflict.'” (Id.). Defendant Gallup refused to speak with Plaintiff after her complaint “and openly disrespected her and her presence without consequence.” (Id. ¶ 18). In April 2016, Defendant Gallup stated that “he was ‘sick of you females walking around like you own the place.'” (Id. ¶ 18).

         B. MPD Officer Ross Carnie

         In 2014, “Plaintiff briefly dated a fellow officer, ” Defendant Carnie. (Id. ¶ 30). After their relationship ended, Defendant Carnie engaged “in open and notorious resentful and hostile treatment of Plaintiff.” (Id.). Plaintiff, who “was almost never chosen” to attend training schools, had been scheduled to attend a general topics school in May 2016. (Id.). Defendant Carnie “complained during role [sic] call” about Plaintiff's selection to attend the school and insulted Plaintiff, asking “You? Why would they send you?” and stating “maybe they are hoping you'll learn something.” (Id.).

         C. MPD Sergeant Christopher Cushman

         In Fall 2014, Defendant Cushman, a white male MPD officer, was promoted to sergeant. (Id. ¶ 22). Defendant Cushman

made statements in front of Plaintiff multiple times stating, in sum and substance, that his wife “wasn't fucking him so he had to get it somewhere else as long he found the right woman who wouldn't say anything about it.” Additionally, he made multiple statements about a Turkish prison he purportedly visited while on military deployment where women were imprisoned to pay off their husbands [sic] debts as prostitutes. Sgt. Cushman often talked about his visits there and how fun it was to pick the woman he wanted to have sex with. Further, he would discuss renting an apartment to carry on an affair and represented that he falsified a letter reflecting that he was to be deployed so that he could get out of the remainder of the lease when the affair ended.

(Dkt. No. 23-4, ¶ 22). Following his promotion, Defendant Cushman advised other officers that “Plaintiff was ‘trouble'” and told them “not to associate or meet up with her.” (Id. ¶ 23). “In roll call he wouldn't acknowledge or look at Plaintiff and would only talk to the male officers.” (Id.). “At one point, ” Defendant Cushman “told Plaintiff to ‘find another fucking job' and yelled at Plaintiff, hanging up on her when she called him with questions regarding a call.” (Id.).

         The next day, Plaintiff reported “the incident” to Defendant Peckins, a lieutenant at the MPD, and gave him a memo[4] regarding “the issues with” Defendant Cushman. (Id. ¶ 24). Defendant Peckins told her that Defendant Cushman “had made a complaint about her the night before purportedly because she went to another supervisor . . . regarding an extension with a report.” (Id.). Defendant Cushman's complaint, however “was a complete fabrication as Plaintiff had never done such a thing.” (Id.). Although Defendant Peckins investigated Defendant Cushman's complaint and deemed it “to be unfounded and untrue, ” Defendant Cushman was “not disciplined for this lie.” (Id.). In contrast, Plaintiff was “admonished to ‘communicate better' even though [she] had done nothing wrong.” (Id.).

         Defendant Peckins “and others conducted an internal affairs investigation regarding Plaintiff's memo.” (Id. ¶ 25). Following the investigation, Defendants Marlowe, Schafer, and Peckins advised Plaintiff “that the issues with Sgt. Cushman had been addressed” and when Plaintiff “expressed concern for [her] well being as she was working directly under” Defendant Cushman, Defendants Marlowe and Peckins responded they “would ‘keep an eye' on it.” (Id.).

         “Several days later, ” Defendant Cushman “retaliated and told Plaintiff's fellow officers to be careful around her as she had gotten him written up.” (Id. ¶ 25). Although Plaintiff had been ordered not to discuss her complaint regarding Defendant Gallup with anyone, Defendant Peckins dismissed reports of Defendant Cushman's discussion of Plaintiff's complaint and “claimed they could not prevent him from talking about it.” (Id.).

         Two weeks later, Plaintiff had to abandon her pursuit of a “reckless motorcyclist” after Defendant Cushman “failed to provide critical backup.” (Id. ¶ 26). Defendants Cushman and Peckins “conspired” “to make Plaintiff believe a ‘citizen' had called with a concern about the pursuit.” (Id.). Plaintiff confronted Defendant Peckins and told him that “it was really Cushman as he witnessed the beginning of the pursuit” and failed to assist. (Id.). Defendant Peckins “admitted it was Cushman” and told Plaintiff that he reviewed the “dash cam footage” and that “she had done everything correctly and within policy.” (Id.). When Plaintiff asked Defendant Peckins why Cushman had not assisted her “as this was a serious officer safety issue, ” he replied that “this is what we were worried about with you working with him after everything, we will keep an eye on it.” (Id.). Defendant Cushman “bragged to others . . . that he had reported Plaintiff's pursuit” but was not disciplined “for his lack of assistance or unprofessional discriminatory and retaliatory conduct.”[5] (Id.).

         In April 2016, a female officer from Cicero, New York, applied for a position at the MPD. (Id. ¶ 29). When Defendant Cushman “learned of her application, he called three Cicero Officers, asked “what does that broad think she's doing applying to my department? Is she stupid?” and told them to “‘Get the dirt on her' so that she wouldn't be hired.” (Id.). Defendant Cushman “then sought to instigate rumors about [the female applicant] to prevent her from being hired.” (Id.). The female applicant was not hired “because of rumors.” (Id.).

         On May 1 or 2, 2016, Defendant Cushman “asked everyone to write memos complaining about Plaintiff.” (Id. ¶ 28). At least one officer “stated that he did not want to write the memo but felt he had to because Sgt. Cushman was his supervisor.” (Id.).[6] “In spite of awareness that Sgt. Cushman and others would not fairly and consistently supervise Plaintiff's shift, [Defendant] Peckins only suggested changing Plaintiff's shift, endorsing Sgt. Cushman's conduct and the discriminatory and retaliatory hostile work environment.” (Id.).

         D. End of Employment at MPD

         On May 4, 2016, Plaintiff informed the MPD that she had obtained an order of protection against Defendant Schmid, her former boyfriend and a volunteer firefighter. (Id. ¶ 31). It was “a complete stay-away Order, prohibiting [Schmid] from going to Plaintiff's work.” (Id.). Schmid “had threatened to” and had made “complaints to Plaintiff's employer in an attempt to coerce Plaintiff to meet with him and/or continue the relationship, impugning Plaintiff's character.” (Id.).

         On May 6, 2016, Defendant Schafer, an MPD captain who was aware of the order of protection, told Plaintiff that Defendant Schmid “had come to the station to make complaints about her” and that he had “accused [Plaintiff] of threatening firefighters from Manlius in December 2015.” (Id. ¶ 32). Plaintiff explained to Defendant Schafer-though he already knew-that Defendant Schmid “was angry that she had refused to talk to him and that she had obtained an order of protection.” (Id.). When Plaintiff told Defendant Schafer that Defendant Schmid “had threatened to go to her police department and tell them she didn't secure her weapon in a safe at home if she did not talk to him, ” Defendant Schafer “admitted” that Defendant Schmid “had told him that.” (Id.). When Plaintiff asked why Defendant Schmid “had not been arrested for violating the order” of protection, Defendant Schafer responded that an arrest “would not be ‘entertained.'” (Id.). Defendant Schafer informed Plaintiff that she was “the subject of an internal affairs investigation.” (Id.). Plaintiff was distressed that Defendant Schafer was “treating her like a criminal and not his officer or worthy of protection as a domestic violence victim” and “felt a severe pain in her chest area and found it difficult to breathe or speak.” (Id. ¶¶ 32-33). Defendant Schafer ordered her to remove her weapons from her belt and to place them on the desk, which she did. (Id. ¶ 33). Plaintiff told Defendant Schafer that she “needed to go” and left the building. (Id.). Defendant Schafer followed her to her truck and asked “for her keys, identification and badge which she handed to him.” (Id.).

         “Shortly thereafter, ” Defendants Schafer and Marlowe came to Plaintiff's home and approached Plaintiff in her front yard. (Id., ¶ 33). Plaintiff “stated that Schmid had violated the Order.” (Id.). Defendant Marlowe “explained that the Internal Affairs Investigation was necessary and that there were no criminal allegations and left.” (Id.).

         At approximately 7:00 p.m. that night, Plaintiff received a call “from a male who identified himself as Manlius Fire Chief Pinsky.” (Id. ¶ 34). Defendant Pinsky stated that he had heard from Defendant Schafer that she had resigned. (Id.). Defendant Pinsky asked Plaintiff “what if I told you I can make all this go away?” and attempted “to intimidate Plaintiff into dropping the order of protection against . . . Schmid.” (Id.). Defendant Pinsky told Plaintiff “in sum and substance, that he could make the internal affairs investigation and or complaints against her ‘all go away' and that ‘all she needed to do' was call the DA's office and ‘drop all this.'” (Id.). He spoke “aggressively” and threatened that “he would have his firefighters report on her” and that “he would ‘file' against her brother, too.” (Id.). Before Plaintiff hung up the phone, Defendant Pinsky stated “it's not a threat, that's what is going to happen.” (Id.). Defendant Pinsky “also sent [Plaintiff] threatening text messages.” (Id.).

         Plaintiff then contacted Defendants Schafer and Marlowe and “advised them that Schmid was now attempting to intimidate her by third-party contact via the fire chief, Pinsky.” (Id. ¶ 35). Defendants Schafer and Marlowe came to Plaintiff's home, where she told them “that the Order had been violated.” (Id.). They responded that “they did not want to investigate the matter” but that Defendant Marlowe would call Defendant Pinsky “and tell him not to call [Plaintiff] anymore.” (Id.). Defendant Schafer then asked Plaintiff to turn in her off-duty weapon, which she did. (Id.). Defendant Marlowe told Plaintiff to “keep in touch” and they left. (Id.).

         At approximately 11:30 p.m., Plaintiff received a call from her supervisor at her part-time job, who asked if she was ok. (Id. ¶ 36). The supervisor told Plaintiff that Defendant Schafer had called him and told him that Plaintiff “had ‘resigned.'” (Id.). “Plaintiff did not resign.” (Id.).

         The next afternoon, while Plaintiff was packing to return home to Massachusetts with her brother, a New York State Trooper “came to her home and told her . . . that Benjamin Schmid had called to make a complaint that [her brother] had texted him two weeks earlier (before the order) telling him to stay away from Plaintiff and her home.” (Id. ¶ 37). Plaintiff told the trooper “what had occurred the day before at her workplace.” (Id.). “Over the next few days Plaintiff received several phone calls from the NYS Troopers to advise that firefighters had come in to report that she had been acting in a threatening manner in December, 2015 at the Manlius fire station.” (Id.). The New York State Troopers investigated the matter and “found no evidence that these allegations were true” and “[i]nformed Plaintiff . . . that Chief Pinsky's conduct may have constituted intimidation of a witness.” (Id.).

         Subsequently, Plaintiff was treated at a Massachusetts hospital for “severe stress.” (Id. ¶ 38). The following Saturday, when Plaintiff called Defendant Marlowe “to request extended sick leave, ” he responded that Plaintiff “had resigned and they ‘had already processed the paperwork and the attorney had already filed it, '” and that Plaintiff should “‘stay in touch.'” (Id.).

         On June 17, 2016, Plaintiff filed a claim for workers compensation benefits under New York General Municipal Law 207-c alleging that her medical leave “arose from ‘incidents from the past three years involving sexual harassment.'” (Id. ¶ 38). Plaintiff alleges that because her “injury is work related” the Town Defendants wrongfully “refused to process or provide Plaintiff . . . benefits to which she is entitled” and “controverted [her] worker's compensation claim without a good faith basis to do so.” (Id.). “On or about October 31, 2016, Plaintiff's employment with the Town of Manlius was terminated on the pretextual basis that she resigned.” (Id.).

         On August 3, 2016, Plaintiff served a notice of claim on Defendants and filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶ 10). Plaintiff's EEOC charge was cross-filed with the New York State Division of Human Rights. (Id.). On May 18, 2017, “the U.S. Department of Justice, Civil Rights Division issued a Notice of Right to Sue letter to Plaintiff.” (Id. ¶ 11).

         IV. MOTION TO DISMISS - Fed.R.Civ.P. 12(b)(5)

         Defendant Pinsky seeks dismissal under Rule 12(b)(5) on the ground that Plaintiff failed “to effectuate proper service on him as an individual.” (Dkt. No. 14-1, at 13). Plaintiff opposes this motion. The Court finds that Plaintiff has failed to show she served Defendant Pinsky properly, but will extend the time to allow for proper service.

         A. Standard of Review

         “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). “Absent consent, this means there must be authorization for service of summons on the defendant.” Id. A court “must look to matters outside the complaint to determine whether it has jurisdiction.” Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y. 2002). “When a defendant raises a Rule 12(b)(5) ‘challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy.'” Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y. 2003) (quoting Preston v. New York, 223 F.Supp.2d 452, 466 (S.D.N.Y. 2002)). A plaintiff must, “through specific factual allegations and any supporting materials, make a prima facie showing that service was proper.” Kwon v. Yun, No. 05-cv-1142, 2006 WL 416375, at *2, 2006 U.S. Dist. LEXIS 7386, at *6 (S.D.N.Y. Feb. 21, 2006).

         B. Analysis

         Rule 4 of the Federal Rules of Civil Procedure provides that service of a summons and complaint may be effected by: (1) delivering process to the individual defendant personally; (2) leaving process at the individual defendant's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (3) delivering process to an authorized agent of the defendant, whether the defendant be an individual, corporation, partnership, or association. See Fed R. Civ. P. 4(e)(2), (h)(1)(B). Alternatively, Rule 4 permits service to be effected by “following state law for serving a summons in an action . . . in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1) (service on an individual); see also Fed. R. Civ. P. 4(h)(1)(A) (cross-referencing Rule 4(e)(1) for service on a corporation, partnership, or association).

         Under New York law, the following methods may generally be used to serve process on an individual: (1) delivering the summons to the defendant personally; (2) delivering the summons to a person of suitable age and discretion at the defendant's actual place of business, dwelling place, or usual place of abode, and mailing the summons to the defendant's last known residence or actual place of business (a procedure commonly referred to as leave-and-mail service); or (3) delivering the summons to an individual designated as the defendant's agent for service. See N.Y. C.P.L.R. 308(1)-(3).

         Defendant Pinsky submitted a declaration stating that he is “the sole member of the law firm Pinsky Law Group, PLLC, ” and he is “a volunteer firefighter with the Manlius Fire Department, a department of the Village of Manlius” and is not “employed by either the Fire Department [or the] Village of Manlius.” (Dkt. No. 14-4, ¶¶ 2-3). Defendant Pinsky asserts that because Plaintiff “deliver[ed] the Summons and Complaint to an on duty lieutenant with the Fire Department at one of the Fire Departments' stations and subsequently mail[ed] the Summons and Complaint to the Manlius Fire Department, ” neither of which were “his actual place of business or his residence, ” service was insufficient. (Dkt. No. 14-1, at 13). Plaintiff responds that because Chief Pinsky is a member of the Fire Department, and, under New York law, “a person can have more than one ‘actual place of business' for the purposes of § 308(2), ” service was proper. (Dkt. No. 23-5, at 19) (quoting Velez v. Novartis Corp., No. 04-cv-9194, 2006 WL 903228, at *1, 2006 U.S. Dist. LEXIS 1758, *5 (S.D.N.Y. Apr. 5, 2006)). Plaintiff has not, however, provided the affidavit of service or offered any evidence from which the Court could find that the Fire Department, where he was a volunteer, was Defendant Pinsky's “actual place of business.” Thus, she has failed to sustain her burden. See Selmani v. City of New York, 100 A.D.3d 861, 862 (2d ...


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