Brown v. New York State Dept. of Correc. Services, 02-CV-6666L.

• Citation: 583 F.Supp.2d 404
• Decision Date: 29 October 2008
• Docket Number: No. 02-CV-6666L.,02-CV-6666L.
• Parties: Curtis BROWN, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Elmira Correctional Facility, New York State Office of the State Comptroller, New York State Department of Civil Services, Danny State, Sam Karam, Lieutenant George Martin, Nick Marino, Marty Bailey, Sergeant Gray, Danny Leonard, William Beam, Sergeant Keough, in their official and individual capacities, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Court of Western District of New York

583 F.Supp.2d 404

Curtis BROWN, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Elmira Correctional Facility, New York State Office of the State Comptroller, New York State Department of Civil Services, Danny State, Sam Karam, Lieutenant George Martin, Nick Marino, Marty Bailey, Sergeant Gray, Danny Leonard, William Beam, Sergeant Keough, in their official and individual capacities, Defendants.

No. 02-CV-6666L.

United States District Court, W.D. New York.

October 29, 2008.

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Marc W. Garbar, Garbar & Garbar, P.C., New York, NY, for Plaintiff.

Thomas J. Kidera, New York State Attorney General's Office, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff, Curtis Brown, commenced this action against his employer, the New York State Department of Correctional Services ("DOCS"), and several other institutional and individual defendants, alleging that he has been discriminated against in a number of ways on account of his race. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

BACKGROUND

Plaintiff, an African-American male, has been employed with DOCS as a Correction Officer ("C.O.") since 1988. He has worked at Elmira Correctional Facility ("Elmira") since 1995.

Plaintiff alleges that from early 2001 to the present, he has been subjected to severe and continual harassment and discrimination by his white coworkers. The specific incidents of harassment and intimidation alleged by plaintiff comprise a long list and will not be set forth in detail here, although particular incidents will be referred to as necessary. What follows is a brief summary of the factual and procedural background of this case.

On April 10, 2001, plaintiff filed a charge with the New York State Division of Human Rights ("SDHR"), alleging "constant and unrelenting racial harassment" by white C.O.s, "both on the job and outside the facility." Complaint Ex. A ¶ 2. Plaintiff filed a second administrative charge in August 2001, alleging that in addition to continued racial harassment, he had been subjected to retaliation by other C.O.s because of his April 10 SDHR complaint. Complaint Ex. B. A third SDHR charge followed in January 2002, alleging further incidents of harassment. Complaint Ex. C.

As stated, plaintiff alleges that throughout this period, he was subjected to relentless harassment by his white coworkers, including not only verbal abuse but in some instances physical violence, including, on one occasion, a white C.O., Mark Bartsch, wrapping a steel chain around plaintiff's neck. Plaintiff's Aff. ¶ 14(n). Plaintiff alleges that he continually complained about these acts to his supervisors, but that they essentially ignored his complaints.

Plaintiff also alleges that he has been subjected to discipline in retaliation for his complaints. In particular, plaintiff was suspended without pay for three months in March 2002, and for ten days in June 2002, after being involved in altercations with white C.O.s. Plaintiff alleges that both of these suspensions were unjustified and that the altercations were initiated by the white C.O.s.

Plaintiff filed the complaint in this action in December 2002. Defendants include "New York State Department of Correctional Services, Elmira Correctional Facility," the New York State Comptroller's Office, the New York State Department of Civil Service (collectively "institutional defendants"), and nine individual defendants, each of whom is a white employee of DOCS who worked at Elmira at the time of the relevant events.

Plaintiff asserts eleven causes of action: (1) a claim of race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., based on a theory of hostile work environment; (2) a claim of unlawful retaliation for plaintiff's exercise of his rights under Title VII; (3) a claim of race discrimination under 42 U.S.C. § 1981; (4) a retaliation claim under § 1981; (5) a claim alleging an amalgam of violations and claims under the Fourteenth Amendment, §§ 1981 and 1983, and Title VII; (6) a retaliation claim under § 1983; (7) a race discrimination claim under the New York State Human Rights Law ("HRL"), Exec. L. § 296; (8) a retaliation claim under the HRL; (9) a claim that defendants acted, in some unspecified manner, "negligently, recklessly or carelessly, and/or with callous indifference toward Plaintiff," Complaint ¶ 62; (10) a claim alleging negligent hiring and supervision of the individual defendants; and (11) what appears to be either a breach of contract claim, or a claim of detrimental reliance, against what plaintiff describes as the "defendant entities," presumably meaning the institutional defendants. Complaint ¶¶ 69-73.

With respect to each cause of action, the complaint seeks "in excess of $10,000,000.00, in back pay, front pay, benefits of employment, damages, compensatory damages, punitive damages, costs, interest and attorney's fees." Complaint at 10-12. Plaintiff also seeks a declaration that defendants willfully violated his rights, and an order enjoining defendants from continuing to violate his rights.

DISCUSSION

I. Claims against Elmira Correctional Facility, the Comptroller's Office, and Civil Service

Plaintiff's claims against Elmira Correctional Facility, the New York State Comptroller's Office, and the Department of Civil Service must be dismissed on the ground that those parties are not proper defendants in this suit, as none of them is plaintiff's "employer." There are not even any allegations concerning the latter two parties, and although plaintiff is employed at Elmira, it is clear that he is employed by DOCS. See Ullah v. NYDOCS, No. 00 Civ. 9506, 2002 WL 1424590, at *1 n. 2, 2002 U.S. Dist. LEXIS 11773, at *2 n. 2 (S.D.N.Y. June 28, 2002) ("Sing Sing Correctional Facility is not a proper defendant and is also dismissed, as plaintiff's employer is NYDOCS and not the individual correctional facility") (citing Richardson v. N.Y.S. DOCS, No. 97 Civ. 0818, 1999 U.S. Dist. LEXIS 1432, at * 1 (W.D.N.Y. Jan. 29, 1999)); see also Alfano v. Costello, 294 F.3d 365, 369 (2d Cir.2002) (describing DOCS as plaintiff C.O.'s employer).

II. Claims under 42 U.S.C. § 1981

Plaintiff's third, fourth, and fifth causes of action all assert claims under § 1981. That statute guarantees to "[a]ll persons within the jurisdiction of the United States ... the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981(a).

The Supreme Court has made clear, however, that "the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units. . . ." Jett v. Dallas Independent School District, 491 U.S. 701, 733, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (quoted in Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir.2004)) (alteration in original).¹ Plaintiff's claims against the institutional defendants under § 1981 must therefore be dismissed.

That bar, however, does not apply to individual defendants, who "may be held liable under §§ 1981 and 1983 for certain types of discriminatory acts, including those giving rise to a hostile work environment." Patterson, 375 F.3d at 226. "A plaintiff may maintain a § 1981 claim against an individual defendant as long as the plaintiff can demonstrate some affirmative link to causally connect the actor with the discriminatory action." Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir.2000) (internal quotes omitted). In other words, a "claim seeking personal liability under section 1981 must be predicated on the actor's personal involvement." Id.

In addition, "[s]ection 1981 provides a cause of action for race-based employment discrimination based on a hostile work environment." Id. at 69. As explained in Part VIII, infra, I find that plaintiff has presented enough evidence to give rise to a genuine issue of fact about whether he was subjected to a hostile work environment on account of his race.

In addition, plaintiff has alleged personal involvement on the part of each of the individual defendants with respect to that claim. Each defendant is alleged to have directly participated in the harassing behavior giving rise to the hostile work environment, except for defendant Sergeant Keough, who is alleged to have either personally witnessed the harassment of plaintiff or received direct complaints from plaintiff about that harassment, and done nothing in response. See Plaintiff's Affidavit (Dkt.# 43) ¶¶ 6, 14(d), 14(e). That is enough to satisfy the personal-involvement requirement. See Hawkins v. County of Oneida, 497 F.Supp.2d 362, 377 (N.D.N.Y. 2007) (denying motion to dismiss C.O.'s § 1981 hostile-work-environment claims against sergeant who was present when coworker made racist and racially charged remarks toward plaintiff, and against lieutenant to whom plaintiff complained about racist remarks and treatment).

III. Claims under 42 U.S.C. § 1983

Although, as stated, § 1983 provides the exclusive federal remedy for state governmental units' violations of the rights guaranteed in § 1981, plaintiff's claims under § 1983 in this action cannot be sustained. First, to the extent that plaintiff attempts to assert such claims against arms of the state or state employees in their official capacity, such claims are barred by the Eleventh Amendment. See Dube v. State Univ. of New York, 900 F.2d 587, 594-95 (2d Cir.1990) (recognizing that § 1983 does not abrogate the states' Eleventh Amendment immunity), cert. denied, 501 U.S. 1211, 111 S.Ct. 2814, 115 L.Ed.2d 986 (1991).

To the extent that plaintiff...