United States District Court, N.D. New York
Bosman Bosman Law Firm, L.L.C. For Plaintiff Kerry
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.
H. Walsh, IV Barth Sullivan Behr For Defendant Village of
Jacqueline Phipps Polito Abigail L. Giarrusso Littler
Mendelson, For Defendants Manlius Fire Department, Chief
Pinsky, and Benjamin Schmid
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, United States District Judge.
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,
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
CROSS-MOTION TO AMEND
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
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 and made degrading remarks to her based on
her gender. (Id.). Despite her complaints, she
received no protection from her supervisors. (Id.).
MPD Investigator James Gallup
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
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.).
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.” (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.
MPD Officer Ross Carnie
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.).
MPD Sergeant Christopher Cushman
2014, Defendant Cushman, a white male MPD officer, was
promoted to sergeant. (Id. ¶ 22). Defendant
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
(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.).
next day, Plaintiff reported “the incident” to
Defendant Peckins, a lieutenant at the MPD, and gave him a
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.).
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.”
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.”
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
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.”
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.). “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.).
End of Employment at MPD
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.”
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.”
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.).
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.).
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.).
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.).
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
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.).
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.”
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).
MOTION TO DISMISS - Fed.R.Civ.P. 12(b)(5)
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.
Standard of Review
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).
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).
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.
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 ...