Bland v. New York
| Decision Date | 07 March 2003 |
| Docket Number | No. 00-CV-6522(ERJ/CLP).,00-CV-6522(ERJ/CLP). |
| Parties | Jacqueline BLAND, Plaintiff, v. The State of NEW YORK; New York State Unified Court System, Office of Court Administration; and Judge James H. Shaw, Jr., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Herbert Eisenberg, William J. Stampur, Daniel L. Alterman, New York City, for Plaintiff.
Carolyn Cairns Olson, Attorney General of the State of New York, Michael Colodner, John P. Eiseman, Richard D. Emery, Emery, Celli, Brinckerhoff & Abady LLP, New York City, Douglas M. Soffey, Garden City, NY, for Defendants.
This case stems from allegations of sexual and racial harassment against a nowretired Justice of the New York Supreme Court, James H. Shaw, Jr. ("Shaw"), by his former secretary, Jacqueline Bland ("Bland" or "plaintiff). Prior to discovery, defendants New York State ("NYS" or the "State"), New York State Unified Court System, Office of Court Administration ("OCA") and Shaw move to dismiss the complaint under Fed R. Civ. P. 12(b). Plaintiff cross-moves for summary judgment under Fed. R.Civ. P. 56(a) claiming that the findings of the State Commission on Judicial Conduct regarding Justice Shaw's conduct towards Ms. Bland require judgment in her favor under principles of issue preclusion.
Plaintiff frames her allegations here as eleven causes of action. In addition to claiming employment discrimination under 42 U.S.C. § 2000e et seq. ("Title VII") based on racial and sexual harassment, and alleging that she was fired in retaliation for her complaints (First through Third Causes of Action), she makes the same claims under 42 U.S.C. § 1983 (Fourth Cause of Action), the New York State Human Rights Law (Sixth through Eighth Causes of Action), and the New York City Human Rights Law (Ninth through Eleventh Causes of Action). She also makes a claim under 42 U.S.C. § 1981 for racial discrimination unconstitutionally impairing her contractual rights relating to her employment (Fifth Cause of Action).
Plaintiff is an adult African-American female. Complaint ¶ 17. She began working as a secretary to Justice Shaw in August 1985, performing general secretarial duties for him; she stopped working with him when she took medical leave on November 21, 1997. Id. ¶¶ 18-19, 23. Plaintiff alleges that she was fired in or about May 1998 after she complained about Shaw's sexually harassing conduct. Id. She was later reinstated by OCA. Id. ¶ 20. She alleges she was paid salary and benefits by OCA and subject to its policies regarding the terms and conditions of her employment; the State and OCA have otherwise delegated to defendant Shaw policy-making authority relating to employment in his court. Id. ¶¶ 21-22.
The complaint alleges that shortly after Ms. Bland went to work as Justice Shaw's secretary he began to physically touch her in an uninvited, unprofessional and inappropriate manner. His conduct included but was not limited to pulling her onto his lap, holding her hand, massaging her shoulders, cupping the side of her breast, intertwining his pinky finger in hers, and sitting uncomfortably close to her rather than on his own side of his desk. Defendant Shaw continued engaging in such inappropriate behavior throughout Ms. Bland's employment. Id ¶¶ 24-26. Plaintiff claims to have objected to this conduct, and to have repeatedly told him that it was unprofessional and unacceptable. Plaintiff claims not to have condoned this conduct in any manner. Id.
Plaintiff also makes claims about verbal harassment, including comments that plaintiffs breasts or "tits" were "voluptuous"; that her husband "never gets thirsty"; that she was losing her "titties and ass" when she had begun to lose weight; that an "old man [the judge] needed a little excitement in his life"; that he did not like it when she wore loose clothing to the office; that her hips were "wide and sexy"; that she should be having sex, and that she should be having sex with him; and that her lips were "sexy," "big," "wide" and "voluptuous." Plaintiff alleges that Justice Shaw also told her about men's pleasure at sucking on breasts, and exhibited gestures depicting such acts, as well as indicating the size of her breasts with his hands. Id. ¶¶ 27-28, 42, 48. Plaintiff also alleges that Justice Shaw's requirement that she use the bathroom in chambers threatened her sense of safety and increased her anxiety. Id ¶¶ 29-30. Plaintiff further claims that Justice Shaw described affairs he had while married, asked intimate questions, routinely tried to kiss her, pulling her tightly toward him. At least on one occasion he kissed her and put his tongue into her mouth. He is alleged to have asked her to "give an old man a hug" and to have asked her to have sex with him. Id ¶¶ 41-44. He is also alleged to have described medical procedures he underwent in an obscene way and referred to plaintiffs "big pink nipples." Id. ¶¶ 55, 56. Plaintiff alleges she felt disrespected and degraded and became depressed, anxious, emotionally distraught and suffered from migraine headaches. Id. ¶ 51.
Justice Shaw is also claimed to have said a number of disparaging things to her about dark-skinned African-American women, stating that he preferred women who were lighter-complected, such as Ms. Bland. ¶¶ 33-35. Shaw repeatedly asserted to plaintiff that he had the power to fire her, threatening her with the loss of her job if she did not acquiesce or if she complained. Ms. Bland was "afraid to complain to supervisors at OCA" about this conduct because she was afraid she would be fired, and afraid no one would believe her. Id. ¶¶ 52-53.
On or about November 10,1997, plaintiff alleges that she told Justice Shaw that he was "nasty" and a "chauvinist." On November 12, 1997, Shaw called plaintiff into his office and told her that he would never talk to her again on a personal level because of the possibility of being charged with sexual harassment. When plaintiff agreed, Shaw became angry. Id. ¶¶ 57-58.
On November 14, 1997, plaintiff complained about Shaw's conduct to the OCA EEO officer at Brooklyn Supreme Court. On November 18, 1997, Shaw began to reprimand plaintiff for her unprofessional attitude. Plaintiff allegedly told Shaw that his sexual comments and touching had made her feel uncomfortable. Id. ¶ 62.
Plaintiff filed a charge of discrimination against Shaw with the OCA's EEOC office.
She also made complaints to the New York City Commission on Human Rights (a complaint eventually transferred to the EEOC), as well as to the Chief Judge of the State Court of Appeals, the Office of the Chief Administrative Judge of the State of New York, the Inspector General's Office and the Board of Judicial Ethics Commission. Id. ¶ 63.
In April of 1998, plaintiffs counsel sent a letter to Justice Shaw, referencing the EEOC complaint, requesting that he contact counsel. The letter refers to Ms. Bland as Shaw's "former secretary." Affidavit of Jacqueline Bland dated June 26, 2001,("Pl.Aff.") Ex. C. By letter dated May 28, Shaw responded that in light of the accusations against him and the reference to Ms. Bland as his "former secretary" he was terminating her employment. The letter goes on to state "the nature of the charges makes working together impossible."
Plaintiff had actually been out on medical leave since November of 1997. OCA, which at the time of plaintiffs first complaint had assigned investigators to look into the matter from their EEO office, had offered plaintiff alternative employment at the same or higher salary in a different position in the court system. Plaintiff did not accept this offer, and instead remained out of work on medical leave. When Shaw terminated plaintiff in May of 1998, OCA did not remove plaintiff from the State payroll, and again offered her alternative employment. Affidavit of Chief Administrative Judge Jonathan Lippman of the Unified Court System of the State of New York, dated October 31, 2001, ("Lippman Aff.") ¶¶ 23-25.
On September 3, 1998, plaintiff herself filed a charge of discrimination with the EEOC. The EEOC complaint named the New York State Unified Court System and Shaw as defendants. Pl.Ex. G. The EEOC issued a determination on November 23, 1999 finding reasonable cause to believe that plaintiff had been sexually harassed and retaliated against. Pl.Ex. J. Plaintiff received her right to sue letter on August 18, 2000. Ex. O. The filing date of the complaint in this matter is November 1, 2000.
While the foregoing proceedings were taking place, the New York State Commission on Judicial Conduct took disciplinary action against Justice Shaw. ¶ 65. Both Ms. Bland and another complaining witness, Caroline Rucker, appeared at a hearing before the Commission in July 1999. Although the Commission concluded, after three days of testimony, that the remarks made by Shaw were "inappropriate and demeaning" and merited "severe sanction" it censured him, rather than removing him from the bench, because he would soon be retiring. PL Aff. Exs. H, I.
Justice Shaw requested review of the decision of the Commission by the Court of Appeals; in addition, he moved before the Commission for reconsideration on the basis of newly discovered evidence. He presented an affidavit from a new witness, Shelley Williams, who averred, based on her conversations with Ms. Rucker, that the charges were fabricated. After investigation, the Commission determined that the new evidence "did not create a reasonable possibility or a probability that [the] Determination would be altered." Pl.Ex. N. Following this decision, the Court of Appeals unanimously dismissed the request for review of this decision on the ground that it did not have jurisdiction to review the decision not to consider the new evidence. Pl.Ex. P. It also denied review of this...
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