Oliver v. New York State Police

MOTION to Dismiss for Failure to State a Claim

N.D.N.Y.July 25, 2016

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JEAN OLIVER, Plaintiff, -against- NEW YORK STATE POLICE, et al. Defendants. NOTICE OF MOTION TO DISMISS SECOND AMENDED COMPLAINT ON BEHALF OF THE INDIVIDUAL DEFENDANTS 15-CV-0444 BKS/DJS Motion by: Defendants Timothy Bour, Michael Cerretto, Francis Christensen, Joseph D'Amico, Paul Kelly, Gary Kopacz, Martin McKee, Steven Nigrelli, Wayne Olson and Timothy Owens (collectively referred to hereinafter as “the individual Defendants”) and through its attorney, Eric T. Schneiderman, Attorney General of the State of New York, by John F. Moore, Assistant Attorney General, of Counsel. Date, Time and Place of Hearing: September 1, 2016 at 10:00 a.m. in the forenoon, or as soon thereafter as counsel can be heard, at the James F. Hanley Federal Bldg. U.S. Courthouse, 100 S. Clinton St., Syracuse, NY, 13261. Supporting Papers: Affirmation of John F. Moore, AAG, and Memorandum of Law. Nature of Action: Action seeking money damages claiming violation of constitutional rights pursuant to Title VII, the Rehabilitation Act, the New York State Human Rights Law, the Equal Protection Clause of the Fourteenth Amendment, and 42 U.S.C. §1983, 1985 and 1986, alleging gender discrimination, hostile work environment sexual harassment, disability discrimination, retaliation, and conspiracy claims. Case 1:15-cv-00444-BKS-DJS Document 57 Filed 07/25/16 Page 1 of 3 Relief Demanded: Order pursuant to FRCP 12(b)(6) dismissing Plaintiff’s Complaint against the Individual Defendants on the following grounds: 1) that Plaintiff’s Fifth and Seventeenth Causes of Action should be dismissed against all Individual Defendants because a) Plaintiff neither pleads a sexually hostile work environment claim nor any gender-related claims at all against Defendants D’Amico, Christiensen, Ceretto, Olsen, Owens, Bour or Kopacz, and b) Plaintiff does not plead any separate gender discrimination claims outside of the alleged sexual harassment claims against Defendants Nigrelli, McKee, and Kelly; 2) that Plaintiff’s Sixth and Eighteenth Causes of Action fail to state a claim against Defendants D’Amico, Christiensen, Ceretto, Olsen, Owens, Bour or Kopacz; 3) Plaintiff’s Seventh Causes of Action should be dismissed as against all Individual Defendants because Retaliation claims under § 1983 are commonly brought as First Amendment free speech claims, but are not actionable as Fourteenth Amendment Equal Protection claims; 4) Plaintiff’s Nineteenth Cause of Action should be dismissed against Defendants D’Amico, Cerretto, and Owens should be dismissed for failure to state a claim; 5) Plaintiff’s Eighth through Thirteenth Causes of Action alleging conspiracy under 42 U.S.C. §§1983, 1985(3) and 1986 should be dismissed for failure to state a claim and pursuant to the intracorporate conspiracy doctrine, and 6) Plaintiff’s Twentieth Cause of Action alleging disability discrimination under the NYSHRL should be dismissed for failure to state a claim against the individual defendants; along with such other and further relief as the Court deems just and proper. Appearances: These moving Defendants do not request oral argument and, unless the Court so Orders, no personal appearance is necessary. Answering Papers: Answering papers, if any, must be served as per NDNY Local Rule 7.1(b)(1), or as directed by the Court. I hereby declare, certify and affirm as true and correct under penalty of perjury, pursuant to 28 USC §1746, that on the date below I served all papers in connection with this motion upon those listed below via the court's CM/ECF system, pursuant to FRCP 5(b)(3) and L.R. 5.1.1. (General Order 22 §5.2). Case 1:15-cv-00444-BKS-DJS Document 57 Filed 07/25/16 Page 2 of 3 Dated: Albany, New York July 25, 2016 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for moving Defendants Timothy Bour, Michael Cerretto, Francis Christensen, Joseph D'Amico, Paul Kelly, Gary Kopacz, Martin McKee, Steven Nigrelli, Wayne Olson and Timothy Owens By: John F. Moore__ JOHN F. MOORE Assistant Attorney General, Of Counsel Bar Roll No. 105188 Telephone: 518/776-2293 Fax: (518) 915-7738 Email: john.moore@ag.ny.gov To: Harvey P. Sanders, Esq. (Via ECF) Sanders & Sanders Attorneys for Plaintiff 401 Maryvale Dr. Cheektowaga, NY 14225 (716) 839-1489 harvey.sanders@wnyemploymentlaw.com Case 1:15-cv-00444-BKS-DJS Document 57 Filed 07/25/16 Page 3 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JEAN OLIVER, Plaintiff, -against- NEW YORK STATE POLICE, et. al., Defendants. DECLARATION 15-CV-0444 (BKS/DJS) John F. Moore, on the date noted below and pursuant to § 1746 of Title 28 of the United States Code, declares the following to be true and correct under penalty of perjury under the laws of the United States of America: 1. I am an Assistant Attorney General for the State of New York and appear in this action on behalf of Eric Schneiderman, Attorney General for the State of New York, attorney for Defendants Timothy Bour, Michael Cerretto, Francis Christensen, Joseph D'Amico, Paul Kelly, Gary Kopacz, Martin McKee, Steven Nigrelli, Wayne Olson and Timothy Owens (collectively referred to hereinafter as “the individual Defendants”) in this action. 2. I make this Declaration in support of Defendants’ motion pursuant to Federal Rules of Civil Procedure 12(b)(6) for an order granting Defendants’ Motion to Dismiss the Second Amended Complaint in part and with prejudice. Procedural History: 3. The relevant procedural history in this matter is set forth in the accompanying Memorandum of Law filed herewith at pp. 1-3. The Court has set a date for the Individual Defendants to file a response to the Second Amended Complaint on or before July 25, 2016. (Dkt. 45). Therefore, this motion is timely. Case 1:15-cv-00444-BKS-DJS Document 57-1 Filed 07/25/16 Page 1 of 5 2 4. The Second Amended Complaint is a civil rights action which alleges twenty causes of action claiming violation of Constitutional rights pursuant to Title VII, the Rehabilitation Act, the New York State Human Rights Law, the Equal Protection Clause of the Fourteenth Amendment, and 42 U.S.C. §§1983, 1985 and 1986, alleging gender discrimination, hostile work environment sexual harassment, disability discrimination, retaliation, and conspiracy claims. (Dkt. 37). 5. Plaintiff’s Second Amended Complaint alleges four causes of action against the Defendant New York State Police which are the subject, in part, of a prior motion to dismiss. The remaining sixteen causes of action are brought against the Individual Defendants, as follows: (1) alleged sex discrimination under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - Dkt. 37, FIFTH CAUSE OF ACTION, ¶¶142-51; (2) alleged sexual harassment hostile work environment under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - id., SIXTH CAUSE OF ACTION, ¶¶152-61; (3) alleged retaliation under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - id., SEVENTH CAUSE OF ACTION, ¶¶162-171; (4) alleged conspiracy to commit sex discrimination in violation of the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - id., EIGHTH CAUSE OF ACTION, ¶¶172-81; (5) alleged conspiracy to commit sexual harassment hostile work environment under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - id., NINTH CAUSE OF ACTION, ¶¶182-91; (6) alleged conspiracy to retaliate under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - id., TENTH CAUSE OF ACTION, ¶¶192-201; (7) alleged conspiracy to commit sex discrimination in violation of the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1985(3) - id., EIGHTH CAUSE OF ACTION, ¶¶202-11; (8) alleged conspiracy to commit sexual harassment hostile work environment under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1985(3) - id., Case 1:15-cv-00444-BKS-DJS Document 57-1 Filed 07/25/16 Page 2 of 5 3 TWELFTH CAUSE OF ACTION, ¶¶212-21; (9) alleged conspiracy to retaliate under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1985(3) - id., THIRTEENTH CAUSE OF ACTION, ¶¶222-31; (10) alleged failure to prevent a conspiracy to commit sex discrimination in violation of the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1986 - id., FOURTEENTH CAUSE OF ACTION, ¶¶232-41; (11) alleged failure to prevent a conspiracy to commit sexual harassment hostile work environment under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1986 - id., FIFTEENTH CAUSE OF ACTION, ¶¶242-51; (12) alleged failure to prevent a conspiracy to retaliate under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1986 - id., SIXTEENTH CAUSE OF ACTION, ¶¶252-261; (13) alleged sex discrimination under the New York State Human Rights Law/Executive Law §296 - id., SEVENTEENTH CAUSE OF ACTION, ¶¶262-69; (14) alleged sexual harassment hostile work environment under the New York State Human Rights Law/Executive Law §296 - id., EIGHTEENTH CAUSE OF ACTION, ¶¶270-77; (15) alleged retaliation under the New York State Human Rights Law/Executive Law §296 - id., NINETEENTH CAUSE OF ACTION, ¶¶278-85; and (16) alleged disability discrimination under the New York State Human Rights Law/Executive Law §296 - id., TWENTIETH CAUSE OF ACTION, ¶¶286-93. Defendants’ Motion To Dismiss Should Be Granted: 6. As more fully set forth in the accompanying Memorandum of Law, and based upon the four corners of the pleadings, Defendants move for an Order, pursuant to FRCP 12(b)(6) dismissing Plaintiff’s Complaint against the Individual Defendants on the following grounds: 1) that Plaintiff’s Fifth and Seventeenth Causes of Action should be dismissed against all Individual Defendants because a) Plaintiff neither pleads a sexually hostile work environment claim nor any gender-related claims at all against Defendants D’Amico, Christiensen, Ceretto, Olsen, Owens, Bour Case 1:15-cv-00444-BKS-DJS Document 57-1 Filed 07/25/16 Page 3 of 5 4 or Kopacz, and b) Plaintiff does not plead any separate gender discrimination claims outside of the alleged sexual harassment claims against Defendants Nigrelli, McKee, and Kelly; 2) that Plaintiff’s Sixth and Eighteenth Causes of Action fail to state a claim against Defendants D’Amico, Christiensen, Ceretto, Olsen, Owens, Bour or Kopacz; 3) Plaintiff’s Seventh Causes of Action should be dismissed as against all Individual Defendants because Retaliation claims under § 1983 are commonly brought as First Amendment free speech claims, but are not actionable as Fourteenth Amendment Equal Protection claims; 4) Plaintiff’s Nineteenth Cause of Action should be dismissed against Defendants D’Amico, Cerretto, and Owens should be dismissed for failure to state a claim; 5) Plaintiff’s Eighth through Thirteenth Causes of Action alleging conspiracy under 42 U.S.C. §§1983, 1985(3) and 1986 should be dismissed for failure to state a claim and pursuant to the intracorporate conspiracy doctrine, and 6) Plaintiff’s Twentieth Cause of Action alleging disability discrimination under the NYSHRL should be dismissed for failure to state a claim against the individual defendants; along with such other and further relief as the Court deems just and proper. 7. I declare under penalty of perjury that the foregoing is true and correct. Dated: Albany, New York July 25, 2016 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant New York State Police The Capitol Albany, New York 12224-0341 By: s/John F. Moore John F. Moore NDNY Bar Roll #105188 Assistant Attorney General, of Counsel Telephone: (518) 776-2293 Email: john.moore@ag.ny.gov Case 1:15-cv-00444-BKS-DJS Document 57-1 Filed 07/25/16 Page 4 of 5 5 To: Harvey P. Sanders, Esq. (Via ECF) Sanders & Sanders Attorneys for Plaintiff 401 Maryvale Dr. Cheektowaga, NY 14225 (716) 839-1489 harvey.sanders@wnyemploymentlaw.com Case 1:15-cv-00444-BKS-DJS Document 57-1 Filed 07/25/16 Page 5 of 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JEAN OLIVER, Plaintiff, -against- NEW YORK STATE POLICE, et. al. Defendants. 15-CV-0444 BKS/DJS MEMORANDUM OF LAW IN SUPPORT OF THE MOTION TO DISMISS OF INDIVIDUAL DEFENDANTS D’AMICO, CHRISTIENSEN, CERRETTO, OLSEN NIGRELLI, MCKEE, OWENS, KELLY, BOUR AND KOPACZ PURSUANT TO FRCP 12(B)(6) ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants The Capitol Albany, New York 12224-0341 John F. Moore Assistant Attorney General, of Counsel Bar Roll No. 105188 Telephone: 518-776-2293 Fax: 518-915-7738 (Not for service of papers) Date: July 25, 2016 Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 1 of 30 i Table of Contents PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS AND PROCEDURAL HISTORY ...................................................... 1 STANDARD OF REVIEW ............................................................................................................ 4 ARGUMENT .................................................................................................................................. 6 POINT I .............................................................................................................................. 6 PLAINTIFF’S SIXTH AND EIGHTEENTH CAUSES OF ACTION ALLEGING HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT UNDER THE EQUAL PROTECTION CLAUSE/§1983 AND THE NYSHRL SHOULD BE DISMISSED AGAINST DEFENDANTS D’AMICO, CHRISTENSEN, CERETTO, OLSEN, OWENS, BOUR AND KOPACZ........................................................................... 6 POINT II ........................................................................................................................... 10 PLAINTIFF’S FIFTH AND SEVENTEENTH CAUSES OF ACTION ALLEGING SEX DISCRIMINATION UNDER THE EQUAL PROTECTION CLAUSE/§1983 AND THE NYSHRL SHOULD BE DISMISSED AGAINST ALL DEFENDANTS. .................................................. 10 POINT III .......................................................................................................................... 12 PLAINTIFF’S SEVENTH CAUSE OF ACTION ALLEGING RETALIATION UNDER THE EQUAL PROTECTION CLAUSE/§1983 SHOULD BE DISMISSED AGAINST ALL DEFENDANTS. ........................... 12 A. The claims of retaliation in violation of the NYSHRL against Defendants D'Amico, Cerritto, and Owens in the Nineteenth Cause of Action should be dismissed .............................................................................. 13 POINT IV.......................................................................................................................... 14 PLAINTIFF'S EIGHTH THROUGH SIXTEENTH CAUSES OF ACTION ALLEGING CONSPIRACY UNDER 42 USC §§1983, 1985(3) AND 1986 SHOULD BE DISMISSED. .............................................................. 14 A. Plaintiff has failed to state a claim for conspiracy. ..................................... 14 Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 2 of 30 ii B. Plaintiff's conspiracy claims are barred by the intracorporate conspiracy doctrine……………………………………………………………………15 C. Plaintiff's claims of failure to prevent deprivation of civil rights in violation of § 1986 should be dismissed ..................................................... 16 POINT V ........................................................................................................................... 17 PLAINTIFF’S TWENTIETH CAUSE OF ACTION ALLEGING DISABILITY DISCRIMINATION UNDER THE NYSHRL SHOULD BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION. ............ 17 A. Plaintiff makes no claims of disability discrimination whatsoever against Defendants D'Amico, Christensen, Ceretto, Nigrelli, Owens, and Kelly ..................................................................................................... 19 B. Plaintiff fails to sufficiently allege that she was preceived as disabled by Defendants Bour, McKee, Olsen and Kopacz ......................... 19 C. Plaintiff fails to sufficiently allege that she suffered an adverse employment action because of her disability .............................................. 22 CONCLUSION ............................................................................................................................. 23 Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 3 of 30 iii TABLE OF AUTHORITIES PAGE(S) CASES Annis v. Cnty. of Westchester, 36 F.3d 251 (2d Cir. 1994).........................................................................................................6 Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009).....................................................................................................15 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009) ....................................................... 4-5 Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004).......................................................................................................7 Barnett v. Revere Smelting & Ref. Corp., 67 F. Supp. 2d 378 (S.D.N.Y. 1999) ........................................................................................17 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ........................................................ 4-5 Bermudez v. City of New York, 783 F. Supp. 2d 560 (S.D.N.Y. 2011) ........................................................................................7 Bernheim v. Litt, 79 F.3d 318 (2d Cir. 1995).......................................................................................................12 Bethea v. City of New York, 2014 U.S. Dist. LEXIS 80945 (E.D.N.Y. 2014) ................................................................ 10-11 Black v. Coughlin, 76 F.3d 72 (2d Cir. 1996) ..........................................................................................................8 Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008).....................................................................................................18 Brown v. City of Oneonta, 221 F.3d 329 (2d Cir.2000)......................................................................................................15 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) .......................................................22 Cleveland v. Caplaw Centers., 448 F.3d 518 (2d Cir. 2006).......................................................................................................4 Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 4 of 30 iv Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595 (8th Cir.1998) ....................................................................................................21 Davis v. City of New York, 2007 U.S. Dist. LEXIS 78031 (S.D.N.Y. 2007) ......................................................................22 Droz v. McCadden, 580 F.3d 106 (2d Cir. 2009).....................................................................................................14 Edwards v. Jericho Union Free Sch. Dist., 904 F. Supp. 2d 294 (E.D.N.Y. 2012) .....................................................................................19 Eustace v. South Buffalo Mercy Hosp., 36 Fed. Appx. 673 (2d Cir. 2002) ............................................................................................22 Everson v. New York City Transit Authority, 216 F. Supp. 2d 71 (E.D.N.Y. 2002) .......................................................................................16 Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006).......................................................................................................8 Finnegan v. Univ. of Rochester Med. Ctr., 180 F.R.D. 247 (W.D.N.Y. 1998) ..............................................................................................4 Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000).....................................................................................................22 Gaston v. Coughlin, 249 F.3d 156 (2d Cir. 2001)...................................................................................................5, 7 Gierlinger v. N.Y. State Police, 15 F.3d 32 (2d Cir. 1994) ..........................................................................................................6 Gusler v. City of Long Beach, 823 F. Supp. 2d 98 (E.D.N.Y. 2011) .......................................................................................17 Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007).......................................................................................................4 Joseph v. Jofaz Transp., Inc., 2012 U.S. Dist. LEXIS 32887 (S.D.N.Y. 2012) ......................................................................18 Kennedy v. New York, 2016 U.S. Dist. LEXIS 28265 (W.D.N.Y. March 4, 2016) .......................................................8 Lange v. Town of Monroe, 213 F. Supp. 2d 411 (S.D.N.Y. 2002) ......................................................................................12 Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 5 of 30 v Laurent v. G & G Bus Serv., Inc., 2011 U.S. Dist. LEXIS 77138 (S.D.N.Y. 2011) ......................................................................20 Liner v. Fischer, 2013 U.S. Dist. LEXIS 88147 (S.D.N.Y. 2013) ......................................................................15 Little v. City of New York, 487 F. Supp. 2d 426 (S.D.N.Y. 2007) ......................................................................................16 McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001).....................................................................................................13 Parker v. Columbia Pictures, 204 F.3d 326 (2d Cir. 2000).....................................................................................................17 Patane v. Clark, 508 F.3d 106 (2d Cir. 2007)...........................................................................................7, 11, 13 Patterson v. Cnty. of Oneida, 375 F.3d 206 (2d Cir. 2004)...................................................................................................5, 7 Pedrosa v. City of New York, 2014 U.S. Dist. LEXIS 3315 (S.D.N.Y. 2014) ................................................................7, 9, 12 Perry v. New York Dep’t of Labor, 2009 U.S. Dist. LEXIS 74006 (S.D.N.Y. 2009) ......................................................................18 Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144 (2d Cir. 1998).....................................................................................................17 Richard v. Fischer, 38 F. Supp. 3d 340 (W.D.N.Y. 2014) ................................................................................14, 15 Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749 (2d Cir. 2004).....................................................................................................22 Smith v. Town of Hempstead Dep't of Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443 (E.D.N.Y. 2011) .......................................................................................7 Sousa v. Roque, 578 F.3d 164 (2d Cir. 2009).....................................................................................................12 Stevens v. New York, 691 F. Supp. 2d 392 (S.D.N.Y. 2009) ......................................................................................19 Sullivan v. River Valley School Dist., 197 F.3d 804 (6th Cir. 1999) ...................................................................................................21 Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 6 of 30 vi Talley v. Brentwood Union Free School Dist., 728 F.Supp.2d 226 (E.D.N.Y. 2010) .......................................................................................16 Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003).....................................................................................................22 Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41 (2d Cir. 2012).........................................................................................................6 Vega v. Artus, 610 F. Supp. 2d 185 (N.D.N.Y. 2009) .....................................................................................16 Wallace v. Suffolk County Police Dept., 396 F. Supp.2d 251 (E.D.N.Y. 2005) ......................................................................................12 Webb v. Goord, 340 F.3d 105 (2d Cir. 2003).....................................................................................................15 Weeks v. N.Y. State, 273 F.3d 76 (2d Cir. 2001).......................................................................................................22 FEDERAL STATUTES 42 U.S.C. § 12101-2 ......................................................................................................................20 42 U.S.C. § 1983 .................................................................................................................... passim 42 U.S.C. § 1985 ......................................................................................................................14, 16 42 U.S.C. § 1986 ............................................................................................................ 3, 14, 16-17 FEDERAL REGULATIONS 29 C.F.R. § 1630.14(c)...................................................................................................................22 FEDERAL RULES FRCP 12(b)(6) .................................................................................................................................4 NEW YORK STATE STATUTES N.Y. Exec. Law § 292(21) ..................................................................................................................................20 § 296(1) ......................................................................................................................................6 § 296(6) ................................................................................................................................6, 19 § 296(7) ....................................................................................................................................13 Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 7 of 30 1 PRELIMINARY STATEMENT Defendants Timothy Bour, Michael Cerretto, Francis Christensen, Joseph D'Amico, Paul Kelly, Gary Kopacz, Martin McKee, Steven Nigrelli, Wayne Olson and Timothy Owens (collectively referred to hereinafter as “the individual Defendants”) respectfully submit this memorandum of law in support of the individual Defendants’ motion to dismiss, in whole or in part (as specified below), the FIFTH through TWENTIETH causes of action of the Second Amended Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Also submitted in support of this motion is the declaration of John F. Moore ("Moore Declaration"), dated July 25th, 2016. STATEMENT OF FACTS AND PROCEDURAL HISTORY Although the Defendant denies the essential allegations of the Second Amended Complaint, at this stage of the litigation, the factual allegations in the Complaint must be accepted. A brief description of the allegations follows. According to the Complaint, treated as true for purposes of this motion only, Plaintiff began working for Defendant in 1997 as a New York State Trooper. Dkt. 37, p. 6, ¶26. By 2005 she had been promoted to Investigator and assigned to the Batavia Downs Video Lottery Unit. Id., ¶28. In 2008 she was reassigned to the Community Narcotics Enforcement Team (“CNET”) West (id., ¶29), and claims she was reassigned following a formal complaint in November 2013. (Id., ¶64). She claims she was terminated after being found guilty of disciplinary charges on July 14, 2015. (Id., ¶117). Her allegations of purported harassment, discrimination and retaliation are generally at ¶¶26-118 of the Second Amended Complaint. A discussion of the particular allegations against the various individual Defendants are discussed in the point headings below to the extent they are relevant to this motion. Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 8 of 30 2 Plaintiff commenced this lawsuit (Dkt. 1) by filing a pro se Complaint on April 15, 2015. (Id.). Following a motion to dismiss by Defendant New York State Police, various other motions and extensions not relevant to this motion, an appearance by counsel on behalf of Plaintiff, and a Motion to Amend (see, Docket for Case #:15-cv-00444), an Amended Complaint was filed (Dkt. 29) adding 10 new Defendants, all employees of the New York State Police named in their individual and official capacities. Thereafter, a Second Amended Complaint was filed. (Dkt. 37). The Defendant New York State Police has already appeared via a partial motion to dismiss the Second Amended Complaint. (Dkt. 41). The Second Amended Complaint is a civil rights action which alleges twenty causes of action claiming violation of Constitutional rights pursuant to Title VII, the ADA, the New York State Human Rights Law, the Equal Protection Clause of the Fourteenth Amendment, and 42 U.S.C. §§1983, 1985 and 1986, alleging gender discrimination, hostile work environment sexual harassment, disability discrimination, retaliation, and conspiracy claims. (Dkt. 37). Plaintiff’s Second Amended Complaint alleges four causes of action against the Defendant New York State Police which are not the subject of this motion. The remaining sixteen causes of action are brought against the individual defendants, as follows: (1) alleged sex discrimination under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - Dkt. 37, FIFTH CAUSE OF ACTION, ¶¶142-51; (2) alleged sexual harassment hostile work environment under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - id., SIXTH CAUSE OF ACTION, ¶¶152-61; (3) alleged retaliation under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - id., SEVENTH CAUSE OF ACTION, ¶¶162-171; (4) alleged conspiracy to commit sex discrimination in violation of the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 9 of 30 3 id., EIGHTH CAUSE OF ACTION, ¶¶172-81; (5) alleged conspiracy to commit sexual harassment hostile work environment under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - id., NINTH CAUSE OF ACTION, ¶¶182-91; (6) alleged conspiracy to retaliate under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983 - id., TENTH CAUSE OF ACTION, ¶¶192-201; (7) alleged conspiracy to commit sex discrimination in violation of the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1985(3) - id., EIGHTH CAUSE OF ACTION, ¶¶202-11; (8) alleged conspiracy to commit sexual harassment hostile work environment under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1985(3) - id., TWELFTH CAUSE OF ACTION, ¶¶212-21; (9) alleged conspiracy to retaliate under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1985(3) - id., THIRTEENTH CAUSE OF ACTION, ¶¶222- 31; (10) alleged failure to prevent a conspiracy to commit sex discrimination in violation of the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1986 - id., FOURTEENTH CAUSE OF ACTION, ¶¶232-41; (11) alleged failure to prevent a conspiracy to commit sexual harassment hostile work environment under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1986 - id., FIFTEENTH CAUSE OF ACTION, ¶¶242- 51; (12) alleged failure to prevent a conspiracy to retaliate under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1986 - id., SIXTEENTH CAUSE OF ACTION, ¶¶252-261; (13) alleged sex discrimination under the New York State Human Rights Law/Executive Law §296 - id., SEVENTEENTH CAUSE OF ACTION, ¶¶262-69; (14) alleged sexual harassment hostile work environment under the New York State Human Rights Law/Executive Law §296 - id., EIGHTEENTH CAUSE OF ACTION, ¶¶270-77; (15) alleged retaliation under the New York State Human Rights Law/Executive Law §296 - id., Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 10 of 30 4 NINETEENTH CAUSE OF ACTION, ¶¶278-85; and (16) alleged disability discrimination under the New York State Human Rights Law/Executive Law §296 - id., TWENTIETH CAUSE OF ACTION, ¶¶286-93. Based upon the four corners of the pleadings, Defendants’ motion to dismiss should be granted to the extent set forth below.1 STANDARD OF REVIEW Rule 12(b)(6): In reviewing a motion to dismiss under Rule 12(b)(6), a court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Cleveland v. Caplaw Centers., 448 F.3d 518, 521 (2d Cir. 2006). The plaintiff must satisfy "a flexible 'plausibility' standard, which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007). The Court does not, therefore, require "heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face." Id. at 1974. In Bell Atlantic Corp. v. Twombly, supra, the Supreme Court modified the previously applicable standard for assessing the sufficiency of complaints in civil cases and ruled that if a claim is not plausible, it would have to be supported by an allegation of some subsidiary facts to survive a motion to dismiss. Id. at 570. More recently, in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. 1 Any allegations against individual defendants in the Second Amended Complaint not addressed in this motion will be responded to when this motion is resolved. Finnegan v. Univ. of Rochester Med. Ctr., 180 F.R.D. 247, 249 (W.D.N.Y. 1998) (filing of Rule 12 motion as to part of the complaint suspends time to respond to entire complaint). Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 11 of 30 5 Ct. 1937, 173 L.Ed.2d 868 (2009), the Court provided further guidance, setting a two-pronged approach for courts considering a motion to dismiss. First, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., 129 S.Ct. at 1949; citing, Twombly, 550 U.S. at 555. Second, "[w]hen there are well-pleaded factual allegations a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief."' Id. at 1949 (quoting and citing Twombly, 550 U.S. at 556-67). Individual liability under §1983 and State law: The standards for individual liability under the applicable federal and state laws vary somewhat. Under 42 U.S.C. § 1983, "[e]very person" who under the color of state law deprives another of their constitutional or other rights under federal law is liable. To hold an individual defendant liable under § 1983, a plaintiff must allege his or her "personal involvement in the claimed violation . . . ." Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004); see also Gaston v. Coughlin, 249 F.3d 156, 166 (2d Cir. 2001). Personal involvement "includes not only direct participation in the alleged violation but also gross negligence in the supervision of subordinates who committed the wrongful acts and failure to take action upon receiving information that constitutional violations are occurring." Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 12 of 30 6 The New York State Human Rights Law ("NYSHRL") prohibits specified acts of discrimination by an employer. N.Y. Exec. Law § 296(1). An individual may be considered an "employer" if he or she has "an ownership interest in the relevant organization or the 'power to do more than carry out personnel decisions made by others.'" Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41, 57 (2d Cir. 2012) (citing Patrowich v. Chem. Bank, 63 N.Y.2d 541, 473 N.E.2d 11, 12, 483 N.Y.S.2d 659 (1984)). The NYSHRL also makes it unlawful for any person to retaliate or to "aid, abet, incite, compel or coerce" unlawful discrimination or for any person to retaliate against someone who has opposed or filed a complaint of discrimination. N.Y. Exec. Law § 296(6) (aiding and abetting); id. § 296(7) (retaliation). ARGUMENT POINT I PLAINTIFF’S SIXTH AND EIGHTEENTH CAUSES OF ACTION ALLEGING HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT UNDER THE EQUAL PROTECTION CLAUSE/§1983 AND THE NYSHRL SHOULD BE DISMISSED AGAINST DEFENDANTS D’AMICO, CHRISTENSEN, CERETTO, OLSEN, OWENS, BOUR AND KOPACZ. Plaintiff’s sixth and eighteenth causes of action allege that the individual defendants - each of them, without distinction - engaged in hostile work environment sexual harassment against the Plaintiff, in violation of the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1983, and the NYSHRL. (Dkt. 37, ¶¶152-61, 270-77). Sexual harassment that rises to the level of gender discrimination is actionable under § 1983 as a violation of the Fourteenth Amendment right to equal protection. See Annis v. Cnty. of Westchester, 36 F.3d 251, 254 (2d Cir. 1994) (finding the alleged sexual harassment to be "tantamount to sex discrimination" and therefore actionable as a § 1983 claim); see also Gierlinger v. N.Y. State Police, 15 F.3d 32, 34 (2d Cir. 1994) ("[I]n some circumstances a § 1983 Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 13 of 30 7 claim may be properly grounded on a violation of the Equal Protection Clause of the Fourteenth Amendment based on sexual harassment in the workplace."). To make out a § 1983 gender discrimination claim, the plaintiff must show that she "suffered purposeful or intentional discrimination on the basis of gender." Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118 (2d Cir. 2004). To hold an individual defendant liable under § 1983, a plaintiff must allege his or her "personal involvement in the claimed violation . . . ." Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004); see also Gaston v. Coughlin, 249 F.3d 156, 166 (2d Cir. 2001). Personal involvement "includes not only direct participation in the alleged violation but also gross negligence in the supervision of subordinates who committed the wrongful acts and failure to take action upon receiving information that constitutional violations are occurring." Patterson, 375 F.3d at 229. The elements of a hostile work environment claim are the same under § 1983 and the NYSHRL. See Patterson, 375 F.3d at 225; see also Smith v. Town of Hempstead Dep't of Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451 (E.D.N.Y. 2011) ("The standard for showing a hostile work environment under Title VII, . . . Section 1983, and the New York State Human Rights Law is essentially the same."); Bermudez v. City of New York, 783 F. Supp. 2d 560, 578 (S.D.N.Y. 2011). To state a hostile work environment claim, a plaintiff must plead facts that would tend to show that the complained of conduct: (1) "is objectively severe or pervasive - that is, . . . creates an environment that a reasonable person would find hostile or abusive"; (2) creates an environment "that the plaintiff subjectively perceives as hostile or abusive"; and (3) "creates such an environment because of the plaintiff's sex." Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001)); Pedrosa v. City of New York, 2014 U.S. Dist. LEXIS 3315, *19-21 (S.D.N.Y. 2014). Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 14 of 30 8 Plaintiff fails to state a claim of individual liability for a § 1983 sexual harassment hostile work environment claims against Defendants D’Amico, Christiensen, Ceretto, Olsen, Owens, Bour or Kopacz. With respect to defendant D’Amico - the Superintendent of the State Police who is only mentioned at paragraphs ¶¶10 and 117 of the Second Amended Complaint - Plaintiff makes no claims that this defendant was personally involved in any of the allegedly hostile or abusive conduct - indeed, Plaintiff only makes such claims against a non-defendant, Investigator Jeremy Peterson (Dkt. 37, ¶¶31-40), who allegedly harassed her in 2008 and defendant Kelly, who purportedly engaged in harassing conduct in late 2013 (id., ¶¶42-50). Plaintiff does not allege that D’Amico knew of the harassment and let it continue nor was grossly negligent in supervising subordinates. (Id., ¶¶10, 117). She alleges only that D’Amico adopted a recommendation of termination after a finding, made by a hearing panel, that Plaintiff was guilty of disciplinary charges. (Id., ¶117). "[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority." Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Rather, the "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (internal quotation marks omitted). "Because vicarious liability is inapplicable to . . . § 1983 suits," Plaintiff must plead sufficient facts to show that D’Amico, "through [his] own individual actions, has violated the Constitution." Kennedy v. New York, 2016 U.S. Dist. LEXIS 28265, *24-27 (W.D.N.Y. March 4, 2016). The Second Amended Complaint makes no such allegations against D’Amico. The allegations against Defendant Major Cerretto (Dkt. 37, ¶12), who is alleged to have overseen Troop A according to the Complaint, also fail to state a hostile work environment Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 15 of 30 9 claim. Plaintiff only vaguely and generally alleges that Major Cerretto created a “boys club” atmosphere at Troop A (id., ¶¶86-7), and that he was involved in “pushing” a personnel complaint against Plaintiff in May 2015 (id., ¶¶111-12), two and seven years after the alleged harassment by Peterson and Kelly, which is insufficient to allege that this Defendant participated in or furthered the harassment, was motivated by sex or gender-related discriminatory intent, or even that he knew about the sexual harassment. Pedrosa v. City of New York, 2014 U.S. Dist. LEXIS 3315, *15-16. The allegations against Defendant Deputy Superintendent Christensen (Dkt. 37, ¶11) should be dismissed for the same reason - Plaintiff vaguely alleges that Christensen and Cerretto created a “boys club” atmosphere at Troop A (id., ¶¶86-7), and beginning in May 2014, was involved in charges against Plaintiff, denied her grievances, did not grant her request for transfer and denied promotions. (Id., ¶¶88, 100-01, 108, 110-11). However, Plaintiff fails to allege that Christensen participated in or furthered sexual harassment, was motivated by discriminatory intent, including intent related of Plaintiff’s gender, or that he knew about the sexual harassment. There are no allegations in the paragraphs of the complaint that mention Defendant Olsen which even tangentially link that Defendant to any hostile work environment sexual harassment, knowledge of same or any gender-related discriminatory intent. (Id., ¶¶13, 75, 77-8, 81, 108). The allegations against this Defendant all relate to claims that other employees told Olsen that Plaintiff suffered from PTSD. (Id.) Similarly, allegations against Defendant Bour in the complaint concern claims that he claimed to Olsen that she suffered from PTSD, gave Plaintiff negative evaluations, removed Plaintiff from undercover duties and allegedly lied during an administrative proceeding - but no Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 16 of 30 10 claims related to hostile work environment sexual harassment, knowledge of it or any gender- related discriminatory intent. (Id., ¶¶18, 66, 70, 71, 73, 75-6, 78). The references to Defendant Owens in the complaint are devoid of claims related to hostile work environment sexual harassment, knowledge of it or any gender-related discriminatory intent - he is identified as an investigator and is alleged to have covered up evidence related to an October 2014 personnel complaint against Plaintiff. (Id., ¶¶16, 97). Similarly, the claims against Defendant Senior Investigator Kopacz, even if read in the most plaintiff-friendly way, concern only charges filed against Plaintiff following October 2014 and Kopacz’s alleged transgressions related to that disciplinary investigation and hearing, with no claims that can be read as engaging in hostile work environment sexual harassment, knowledge of it or any gender-related discriminatory intent. (Id., ¶¶19, 84, 94, 103-06, 116). POINT II PLAINTIFF’S FIFTH AND SEVENTEENTH CAUSES OF ACTION ALLEGING SEX DISCRIMINATION UNDER THE EQUAL PROTECTION CLAUSE/§1983 AND THE NYSHRL SHOULD BE DISMISSED AGAINST ALL DEFENDANTS. Plaintiff’s Second Amended Complaint fails to state a claim of sex discrimination under the Equal Protection Clause/§1983, and the NYSHRL. Dkt. 37, ¶¶142-51, 262-69. In order to successfully state a claim for gender discrimination pursuant to Section 1983, Plaintiff must demonstrate that Defendants intentionally discriminated against her, under the color of law, on account of her gender and in violation of the Fourteenth Amendment. Bethea v. City of New York, 2014 U.S. Dist. LEXIS 80945, *23-24 (E.D.N.Y. 2014). For the reasons set forth above, Plaintiff neither pleads a sexually hostile work environment claim nor any gender-related claims at all against Defendants D’Amico, Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 17 of 30 11 Christiensen, Ceretto, Olsen, Owens, Bour or Kopacz, and Plaintiff’s Fifth and Seventeenth causes of action should be dismissed. The Fifth and Seventeenth causes of action against Nigrelli, McKee, and Kelly should also be dismissed. Aside from her sexual harassment claim against Kelly and her claims that McKee, Kelly and Nigrelli were aware of the alleged harassment and let it continue, Plaintiff does not plead any separate gender discrimination claims outside of the alleged sexual harassment claims with any level of specificity. Sexual harassment is a type of gender discrimination, see Id., *17, but in order to survive Defendant's motion to dismiss, Plaintiff must plead a separate and distinct prima facie case for gender discrimination. See Bethea at *17; citing, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). At no place in the Complaint does Plaintiff demonstrate that any specific action or inaction, separate from the alleged sexual harassment, related to the material terms of her employment on the part of these (or the other) individual Defendants which occurred on account of Plaintiff's gender. "[T]he sine qua non of a gender-based discriminatory action claim under Title VII is that the discrimination must be because of sex." Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (emphasis in original). Even if Plaintiff has successfully pled her sexual harassment allegations against certain individual defendants, this does not imply successful pleading of a separate gender discrimination claim. As the Second Amended Complaint provides no facts in support of her separate and additional claim of gender discrimination, the Court should not allow the claim to survive the motion to dismiss stage. Bethea at *17-18, 23-24. Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 18 of 30 12 POINT III PLAINTIFF’S SEVENTH CAUSE OF ACTION ALLEGING RETALIATION UNDER THE EQUAL PROTECTION CLAUSE/§1983 SHOULD BE DISMISSED AGAINST ALL DEFENDANTS. Plaintiff's Seventh cause of action claims retaliation, specifically under the 14th Amendment Equal Protection Clause (Dkt. 37, ¶¶162-71), and the Nineteenth cause of action alleges retaliation in violation of the NYSHRL. (Id., ¶¶278-85). The § 1983 claim for retaliation in the Seventh cause of action should be dismissed against all individual defendants. Retaliation claims under § 1983 are commonly brought as First Amendment free speech claims2, but are not actionable as Fourteenth Amendment equal protection claims. Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1995) (citing Ratliff v. DeKalb Cnty., 62 F.3d 338, 340-41 (11th Cir. 1995) ("The right to be free from retaliation is clearly established as a first amendment right and as a statutory right under Title VII; but no clearly established right exists under the equal protection clause to be free from retaliation." (emphasis in original)); Gray v. Lacke, 885 F.2d 399, 414 (7th Cir. 1989)); Pedrosa v. City of New York, 2014 U.S. Dist. LEXIS 3315, *22-27 (S.D.N.Y. 2014); Wallace v. Suffolk County Police Dept., 396 F. Supp.2d 251, 263 (E.D.N.Y. 2005) (“although claims of retaliation are commonly brought under the First Amendment, and may also be brought under Title VII, we know of no court that has recognized a claim under the equal protection for retaliation”); Lange v. Town of Monroe, 213 F. Supp. 2d 411, 419 (S.D.N.Y. 2002) ("[D]efendants' alleged retaliation in response to plaintiff's sexual harassment complaints is not cognizable as an equal protection violation."). 2 Plaintiff makes no such First Amendment claim here (Dkt. 37), presumably because none of the Plaintiff’s speech here was “on a matter of public concern”, but rather related to her “own dissatisfaction with the conditions of [her] own employment [and was thus] speaking upon matters only of personal interest.” Sousa v. Roque, 578 F.3d 164, 169-74 (2d Cir. 2009). Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 19 of 30 13 Accordingly, Plaintiff's equal protection claim predicated on Defendants' alleged retaliatory actions should be dismissed. A. The claims of retaliation in violation of the NYSHRL against Defendants D’Amico, Cerritto, and Owens in the Nineteenth Cause of Action should be dismissed. The NYSHRL makes it unlawful "for any person engaged in any [prohibited discrimination] to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article." N.Y. Exec. Law. § 296(7). To state a retaliation claim under the NYSHRL, a plaintiff must plead the following elements: "(1) [the plaintiff] participated in a protected activity known to the defendant; (2) the defendant took an employment action disadvantaging [the plaintiff]; and (3) there exists a causal connection between the protected activity and the adverse action." See Patane, 508 F.3d at 115 (setting forth Title VII retaliation claim pleading requirements); see also McMenemy v. City of Rochester, 241 F.3d 279, 283 n.1 (2d Cir. 2001) (holding that NYSHRL and Title VII claims are governed by same standards). The Complaint contains no allegation that Superintendent D’Amico, Major Cerretto, or Investigator Owens knew of any of Plaintiff’s protected activity at the time they committed the acts she alleges were retaliatory, or that any of these three Defendants took employment actions which disadvantaged Plaintiff. (Dkt. 37, ¶¶10, 117 (D’Amico), ¶¶12, 86-7, 111 (Cerretto), ¶¶16, 97 (Owens)). Thus, Plaintiff’s Nineteenth Cause of Action alleging retaliation under the NYSHRL should be dismissed against Defendants D’Amico, Cerretto, and Owens. Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 20 of 30 14 POINT IV PLAINTIFF'S EIGHTH THROUGH SIXTEENTH CAUSES OF ACTION ALLEGING CONSPIRACY UNDER 42 USC §§1983, 1985(3) AND 1986 SHOULD BE DISMISSED. Plaintiff’s Eighth through Thirteenth causes of action allege, as set forth above, that Defendants conspired to commit sex discrimination, sexually hostile work environment and retaliation in violation of Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §§1983 and 1985(3). (Dkt. 37 - ¶¶172-231). The Fourteenth, Fifteenth and Sixteenth causes of action allege failure to prevent a conspiracy to commit sex discrimination, sexually hostile work environment and retaliation under the Equal Protection Clause of the 14th Amendment pursuant to 42 U.S.C. §1986. (Id., ¶¶232-61). A. Plaintiff has failed to state a claim for conspiracy. When a plaintiff asserts a conspiracy claim pursuant to § 1983, he must allege both the underlying § 1983 cause of action and a conspiracy. A plaintiff's § 1983 conspiracy claim fails if she is unable to allege the underlying § 1983 cause of action. Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009); Richard v. Fischer, 38 F. Supp. 3d 340, 351-52 (W.D.N.Y. 2014). As is set forth above, Plaintiff fails to set forth valid § 1983 causes of action against some or all of the individual defendants for sex discrimination, sexually hostile work environment and retaliation in violation of Equal Protection Clause of the 14th Amendment. Plaintiff’s failure to state these claims against these defendants also requires dismissal of her § 1983 conspiracy claims. Further, Plaintiff has failed to allege a “meeting of the minds.” To state a claim under 42 U.S.C. § 1985(3), a claimant must plead: (1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, and (3) an act in furtherance of the conspiracy (4) whereby a person is deprived of any right of a citizen of Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 21 of 30 15 the United States. Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir.2000). A plaintiff must aver some "class-based, invidious discriminatory animus behind the conspirators' action." Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). Broad allegations of conspiracy are insufficient; the plaintiff "must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (internal quotation marks omitted); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009). Here, Plaintiff fails to allege facts adequate to infer a meeting of the minds. Instead, she makes various, largely unrelated allegations of inappropriate treatment, job transfers, performance evaluations, disciplinary actions and responses to complaints by various individual defendants, without alleging any factual basis supporting a meeting of the minds between the 10 State Police employees she has named as Defendants. B. Plaintiff’s conspiracy claims are barred by the intracorporate conspiracy doctrine. Even if Plaintiff had adequately alleged facts sufficient to infer the existence of a conspiracy between some or all of these ten individual State Police officials and employees, Plaintiff's claim is barred by the intracorporate conspiracy doctrine. Here, all of the named individual Defendants are employed by the State Police. (Dkt. 37, ¶¶10-19). The intracorporate conspiracy doctrine "bars conspiracy claims against employees of entities such as [the State Police] (when those employees are alleged to have conspired solely with each other) unless, pursuant to the doctrine's 'scope of employment' exception, the employees were pursuing personal interests wholly separate and apart from the entity by whom they were employed." Richard v. Fischer, 38 F. Supp. 3d at 353-54; citing, Graham v. Peters, 2013 U.S. Dist. LEXIS 156509, at *15-16 (W.D.N.Y. 2013); see also Liner v. Fischer, 2013 U.S. Dist. LEXIS 88147, at *36 n.12 (S.D.N.Y. 2013) (dismissing § 1983 conspiracy claim where all defendants were Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 22 of 30 16 DOCCS employees acting within the scope of employment); Vega v. Artus, 610 F. Supp. 2d 185, 205-06 (N.D.N.Y. 2009) (dismissing Plaintiff's conspiracy claims pursuant to the intracorporate conspiracy doctrine where all of the defendants were DOCCS employees, and all were acting within the scope of their employment); Little v. City of New York, 487 F. Supp. 2d 426, 441-42 (S.D.N.Y. 2007) (dismissing § 1983 conspiracy claim against two police officers who worked for the City of New York pursuant to the intracorporate conspiracy doctrine); see also, Talley v. Brentwood Union Free School Dist., 728 F.Supp.2d 226 (E.D.N.Y. 2010) (“Under the intracorporate conspiracy doctrine, officers, agents and employees of a single corporate or municipal entity, each acting within the scope of his or her employment, are legally incapable of conspiring together.”) (citing, Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978)); Rodriguez v City of New York, 644 F. Supp. 2d 168 (E.D.N.Y. 2008) (dismissing conspiracy claim where all parties to conspiracy part of NYPD); Everson v. New York City Transit Authority, 216 F. Supp. 2d 71, 76 (E.D.N.Y. 2002) (explaining that a corporation or public entity "generally cannot conspire with its employees or agents as all are considered a single entity." (Full citations omitted)). Here, Defendants were State Police employees, acting within the scope of their employment; specifically, their duties of, variously, making work assignments, responding to transfer requests, supervising employees, responding to and investigating employee complaints, and disciplining employees. Accordingly, Plaintiff's conspiracy claims against Defendants are barred by the intracorporate conspiracy doctrine, and should be dismissed. C. Plaintiff’s claims of failure to prevent deprivation of civil rights in violation of § 1986 should be dismissed. Section 1986 provides a cause of action against anyone who, having knowledge that any of the wrongs conspired to be done and mentioned in § 1985 are about to be committed and Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 23 of 30 17 having power to prevent or aid, neglects to do so. See, Gusler v. City of Long Beach, 823 F. Supp. 2d 98, 137 (E.D.N.Y. 2011), citing, 42 U.S.C. § 1986. Thus, a § 1986 claim must be predicated upon a valid § 1985 claim. Gusler v. City of Long Beach, supra; citing, Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (full citations omitted). Since Plaintiff fails to state a claim under Section 1985, she likewise fails to state a claim under Section 1986. Causes of Action 14 - 16 should be dismissed. POINT V PLAINTIFF’S TWENTIETH CAUSE OF ACTION ALLEGING DISABILITY DISCRIMINATION UNDER THE NYSHRL SHOULD BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION. Plaintiff’s Twentieth Causes of Action - alleging disability discrimination in violation of the NYSHRL (see, Dkt. 37, ¶¶286-93) also states no cause of action and must be dismissed. For the purposes of this motion, analysis of plaintiff's claims under the NYSHRL is identical to the standards for an ADA claim.3 See Parker v. Columbia Pictures, 204 F.3d 326, 332 n.1 (2d Cir. 2000) (citing Micari v. Transworld Airlines, Inc., 43 F. Supp. 2d 275, 279 (E.D.N.Y. 1999)); Barnett v. Revere Smelting & Ref. Corp., 67 F. Supp. 2d 378, 388 (S.D.N.Y. 1999). In order to demonstrate a prima facie case of disability discrimination under the NYSHRL/ADA, a plaintiff must show that: (a) that her employer is subject to the ADA; (b) that she is disabled within the meaning of the ADA or perceived to be so by his employer; (c) that 3 The Second Circuit has held that the NYSHRL provides a broader definition of "disability" than does the ADA. See Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 154-56 (2d Cir. 1998). However, Plaintiff's qualification for coverage under the ADA as a “disabled individual” is not at issue here because plaintiff does not claims she suffers from a disability (Dkt. 37, ¶71), nor does she truly allege that Defendants perceived her as so suffering (see Point V.(B.), below); accordingly, this distinction between the two statutes is not relevant for purposes of this motion. Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 24 of 30 18 she was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (d) that she suffered an adverse employment action because of his disability. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008). While “a plaintiff is not required to come forth at the pleading stage with allegations sufficient to make a prima facie case of employment discrimination or to satisfy the burden- shifting framework of McDonnell Douglas Corp. v. Green. . . a complaint must nevertheless allege the essential elements of an employment discrimination claim[.]” Perry v. New York Dep’t of Labor, 2009 U.S. Dist. LEXIS 74006, at *6-7 (S.D.N.Y. 2009) (internal citations omitted); Joseph v. Jofaz Transp., Inc., 2012 U.S. Dist. LEXIS 32887 (S.D.N.Y. 2012). Plaintiff claims that in January 2014 Defendant Bour “made up the claim that she suffered from post-traumatic stress disorder (“PTSD”)” and that Defendant McKee, and Bour, falsely substantiated that claim. (Dkt. 37, ¶¶71 - 76). Plaintiff claims she was “removed from her undercover duties” by Defendant Major Olsen “based on the false claims made to him by … Bour and … McKee that she was suffering from PTSD.” (Id., ¶78). She claims that when she questioned McKee and Bour about this, they informed Plaintiff that they didn’t want to get in trouble for failing to report this to Major Olsen if Plaintiff suddenly decided to commit suicide with her service revolver. (Id., ¶75). Plaintiff denies that she has ever suffered from, been diagnosed with or treated for PTSD. (Id., ¶80). Plaintiff admits that she was permitted to return to undercover work in March 2014, but claims that Defendant Olsen required her to engage in the work under the supervision of Defendant Lt. McKee. (Id., ¶81). Plaintiff’s Verified Second Amended Complaint describes Defendant Lt. McKee as “one of Plaintiff’s supervisors.” (Id., ¶15). Plaintiff also alleges that Defendant Kopacz stated to unspecified others that she was “fucking crazy” which she claims “spread the idea” that she was suffering from PTSD. (Id., Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 25 of 30 19 ¶¶106-07). Plaintiff’s Amended Complaint makes no other factual allegations regarding PTSD or adverse employment actions related to PTSD. (See, Dkt. 37). For the reasons stated below, Plaintiff makes no allegations against the majority to the individual Defendants that concern disability discrimination at all, fails to sufficiently allege that she was perceived as disabled by her employer, and does not allege subjected to an adverse employment action on the basis of an actual or perceived disability. A. Plaintiff makes no claims of disability discrimination whatsoever against Defendants D’Amico, Christensen, Ceretto, Nigrelli, Owens, and Kelly. As set forth above, the only allegations which appear to involve disability discrimination are claims that, essentially, certain State Police employees incorrectly claimed she suffered from PTSD. "An individual can be liable under Section 296(6) so long as he 'actually participates in the conduct giving rise to a discrimination claim." Edwards v. Jericho Union Free Sch. Dist., 904 F. Supp. 2d 294, 304 (E.D.N.Y. 2012) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L. Ed. 2d 633 (1998)). Since Plaintiff does not allege that D’Amico, Christensen, Ceretto, Nigrelli, Owens, and Kelly had any involvement in falsely claiming she had PTSD - the only ostensibly disability-related allegations in the complaint - the Twentieth cause of action should be dismissed against these Defendants. Stevens v. New York, 691 F. Supp. 2d 392, 401 (S.D.N.Y. 2009) (a plaintiff "must assert personal involvement of each of the individual defendants in order to proceed with claims based on" § 1983 and NYSHRL). B. Plaintiff fails to sufficiently allege that she was perceived as disabled by Defendants Bour, McKee, Olsen and Kopacz. The ADA defines disability as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual (B) a record of such impairment; or (C) regarded as having such impairment.” See 42 U.S.C. § 12102(1). A plaintiff claiming that she Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 26 of 30 20 was subjected to discrimination on the basis of a perceived disability no longer needs to demonstrate that she was regarded as suffering from a disability that substantially limits a major life activity. Id. § 12102(3). The ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110- 325, 2008 Stat. 3406 (2008) (codified as amended at 42 U.S.C. §§ 12101-12102 (1990)), set forth a new, more lenient, standard for determining whether an individual is “regarded as disabled.” “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Laurent v. G & G Bus Serv., Inc., 2011 U.S. Dist. LEXIS 77138, 2011 WL 2683201, at *5 (S.D.N.Y. 2011) (quoting 42 U.S.C. § 12102(3)(A)) (emphasis added), adopted by 2011 U.S. Dist. LEXIS 74348, 2011 WL 2693651 (S.D.N.Y. 2011). The NYSHRL definition is similar, in relevant part: it defines disability as (i) "a physical, mental or medical impairment resulting from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques," (ii) "a record of such an impairment," or (iii) "a condition regarded by others as such an impairment." N.Y. Exec. Law § 292(21). As a preliminary matter, Plaintiff’s claims regarding PTSD involve 3 State Police employees: Senior Investigator Bour, Lt. McKee and Major Olsen, and in a more attenuated fashion, Defendant Senior Investigator Kopacz, who allegedly referred to her as “fucking crazy.” It is plain from a reading of the complaint that Plaintiff does not allege that Bour or Olsen regarded her as disabled: rather, she claims they “made up the claim” that she suffered from Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 27 of 30 21 PTSD. (Dkt. 37, ¶71). Similarly, Plaintiff claims that Senior Investigator Kopacz made many “false and derogatory” statements about Plaintiff, including the allegedly false claim that she was “fucking crazy.” (Id., ¶¶105-06). Thus, as Plaintiff claims these three defendants fabricated this claim4, she cannot claim that these State Police employees “perceived” her as having such impairment. With respect to Olsen, she claims that Olsen temporarily removed her from undercover work (id., ¶¶75-81) based upon the representations made by McKee and Bour that she might commit suicide. Plaintiff’s own allegations make clear that this was a short, temporary removal (id., ¶81), and thus that Olsen’s brief removal of Plaintiff from such duty was, viewed in the light most favorable to Plaintiff, based on communicated health concerns (be they false or not) that Plaintiff was suicidal. Such perception that health concerns could affect Plaintiff’s job performance is not actionable under the “perceived as disabled” prong required to plead a prima facie disability discrimination claim. Sullivan v. River Valley School Dist., 197 F.3d 804, 808-09 (6th Cir. 1999) (“[A] defendant employer’s perception that health problems are adversely affecting an employee's job performance is not tantamount to regarding that employee as disabled.”); Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998) (“A request for an evaluation is not equivalent to treatment of the employee as though she were substantially impaired. Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims . . . .”) (citations omitted). “[An employer] may make inquiries into the ability of an employee to perform job- related functions.” See 29 C.F.R. § 1630.14(c). See also Eustace v. South Buffalo Mercy Hosp., 4 This presumes, but does not concede, that the Court would read the allegation that Defendant made a false pejorative claim that Plaintiff was “crazy” to be an allegation of PTSD, which on its face it is not. Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 28 of 30 22 36 Fed. Appx. 673, 674-75 (2d Cir. 2002) (summary order); cf. Davis v. City of New York, 2007 U.S. Dist. LEXIS 78031, at *16 (S.D.N.Y. 2007) (“Because police officers’ work is, by definition, safety-sensitive, it is a justifiable intrusion upon a police officer’s privacy to ensure that he or she is mentally and physically fit to carry out the duties and responsibilities required of a member of the service”). C. Plaintiff fails to sufficiently allege that she suffered an adverse employment action because of her disability. Further, Plaintiff fails to plead that she suffered an adverse employment action as a result of the Defendants’ alleged erroneous (or false) perception of her as disabled. "A plaintiff sustains an adverse employment action if [s]he . . . endures a 'materially adverse change' in the terms and conditions of employment." Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004); Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citing Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999)). "To be 'materially adverse,' a change in working conditions must be 'more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Id. (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). A materially adverse change must "affect employment in a way that is both detrimental and substantial." Weeks v. N.Y. State, 273 F.3d 76, 87 (2d Cir. 2001), abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). Examples of materially adverse changes include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Galabya, 202 F.3d at 640). Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 29 of 30 23 The Complaint fails to allege any adverse employment action related to the alleged false claim that she suffered from PTSD. At most, Plaintiff has pled a temporary (under two months) removal from undercover duty, to which she was returned, and she complains that when she returned she was required to be supervised by McKee - which is not an “adverse action” as in her complaint she describes McKee as one of her supervisors. (Dkt. 37, ¶15). Plaintiff pleads no decrease in benefits, wage or salary related to the alleged perception that she had PTSD, nor any other required indicia of an “adverse employment action”. Plaintiff’s Twentieth Cause of Action should be dismissed for failure to state a claim. CONCLUSION Due to the foregoing, Defendants’ motion must be granted. Dated: Albany, New York July 25, 2016 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants The Capitol Albany, New York 12224-0341 By: s/ John Moore John Moore Assistant Attorney General, of Counsel Bar Roll No. 105188 Telephone: 518-776-2293 Fax: 518-915-7738 (Not for service of papers) Email: john.moore@ag.ny.gov To: Harvey P. Sanders, Esq. (Via ECF) Sanders & Sanders Attorneys for Plaintiff 401 Maryvale Dr. Cheektowaga, NY 14225 (716) 839-1489 harvey.sanders@wnyemploymentlaw.com Case 1:15-cv-00444-BKS-DJS Document 57-2 Filed 07/25/16 Page 30 of 30