Davis v. State, Dep't of Corr.

• Decision Date: 16 April 2012
• Docket Number: Case No. 2:11–cv–164.
• Citation: 868 F.Supp.2d 313
• Parties: Michael DAVIS, Plaintiff, v. State of VERMONT, DEPARTMENT OF CORRECTIONS, Defendant.
• Court: U.S. District Court — District of Vermont

868 F.Supp.2d 313

26 A.D. Cases 735

Michael DAVIS, Plaintiff,

v.State of VERMONT, DEPARTMENT OF CORRECTIONS, Defendant.

Case No. 2:11–cv–164.

United States District Court,

D. Vermont.

April 16, 2012.

Daniela Nanau, Esq., Joshua Friedman, Esq., Rebecca Houlding, Esq., Law Offices of Joshua Friedman, Larchmont, NY, Herbert G. Ogden, Ogden Law Offices, P.C., Danby, VT, for Plaintiff.

David R. McLean, Esq., Vermont Office of the Attorney General, Waterbury, VT, for Defendant.

Memorandum Opinion and Order: Defendant's Motion to Dismiss

WILLIAM K. SESSIONS III, District Judge.

Plaintiff Michael Davis alleges that he was subjected to a hostile work environment based on sex, gender stereotyping, and disability, and that he was retaliated against when he complained of the harassment. Defendant DOC has filed a motion to dismiss all counts of Plaintiff's complaint pursuant to Rule 12(b)(6).

Before the Court are Defendant's Motion to Dismiss and Defendant's Supplemental Motion to Dismiss. For the reasons stated below, the Court grants Defendants Motion to Dismiss count seven alleging retaliation under the Americans With Disabilities Act (“ADA”) and counts two, three, nine, and ten alleging sexual harassment on the basis of sex in violation of the Civil Rights Act of 1964 and the Vermont Fair Employment Practices Act (“VFEPA”).

The Court denies Defendant's Motion to Dismiss counts four and eleven alleging harassment on the basis of gender stereotyping in violation of the Civil Rights Act of 1964 and the VFEPA; counts one and eight alleging harassment on the basis of disability in violation of the Rehabilitation Act and the VFEPA; and counts five, six, and twelve alleging retaliation in violation of the Civil Rights Act of 1964, the Rehabilitation Act, and the VFEPA.

BACKGROUND

For purposes of addressing a motion to dismiss, the Court accepts as true all allegations set forth in the Complaint. Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001). Plaintiff worked for the Vermont Department of Corrections (“DOC”) as a guard from December 2005 until September 2010.

In December 2008, Davis missed two weeks of work due to pain that he was experiencing in his groin and testicles from a work-related injury. In January 2009, after he returned to work, he received from supervisors two offensive emails including objectionable photos referencing his groin. One of the emails contained a picture of an individual with his testicles showing with Davis's face superimposed on the individual. Staff received copies of these emails and inmates became aware of or saw them.

In February 2009, Davis had hernia surgery and was out of work for four weeks. While on leave, Davis complained of the emails and conduct to his union representative and sought treatment for emotional stress due to his supervisors' harassment. Defendant subsequently investigated his supervisors' behavior.

When he returned to work, Davis's co-workers and supervisors were unfriendly toward him. Two weeks after the conclusion of the investigation of his supervisors, Davis received an anonymous note in his work mailbox stating “How's your nuts/kill yourself/your done.” In addition, several times a week inmates ridiculed Davis, grabbing their testicles, making comments such as “good luck making kids with that package,” winking, and laughing. Davis reported these incidents but no investigation resulted.

Shortly after, a co-worker copied Davis on an email that included a cartoon of an individual with a gun to his head with the caption “kill yourself.” In addition, inmate taunts continued after Davis was reassigned to a higher security area where inmates could only have become aware of Davis's medical condition from staff. Davis again filled out an incident report and complained about the inmate harassment, but defendant did not investigate or remediate the situation. In May 2009, a doctor restricted Davis from working in his position due to the excessive anxiety related to the harassment.

In September 2009, Davis was injured at work during “use of force” training due to improper supervision of the training by one of the supervisors who had sent one of the offensive emails to Davis. Davis went on worker's compensation leave for the resulting shoulder injury for over a year, at which time he received a medical reduction in force. While on leave, Davis was followed by a private investigator, who Davis believes Defendant hired.

After receiving a right to sue notice from the Equal Employment Opportunity Commission (“EEOC”), Davis filed this suit in June 2011, bringing claims under the Civil Rights Act of 1964 and the ADA. After Defendant filed its Motion to Dismiss in October, Plaintiff filed two amended complaints. The Second Amended Complaint filed in December 2011 contains additional claims under the Rehabilitation Act and the VFEPA based on essentially on the same alleged facts as the original complaint. Defendant subsequently filed a Supplemental Motion to Dismiss, which extends its arguments related to the Civil Rights Act and the ADA to Plaintiff's claims under the Rehabilitation Act and the VFEPA.

DISCUSSION

I. Standard of Review

This Court recently articulated the standard for reviewing a motion to dismiss pursuant to Rule 12(b)(6):

In Ashcroft v. Iqbal, the Supreme Court set forth a “two-pronged” approach for analyzing a Rule 12(b)(6) motion to dismiss. 556 U.S. 662 [129 S.Ct. 1937, 173 L.Ed.2d 868] (2009). First, a court must accept a plaintiff's factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor. This assumption of truth, however, does not apply to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.

Second, a court must determine whether the complaint's well-pleaded factual allegations ... plausibly give rise to an entitlement to relief. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that the defendant acted unlawfully.

Gadreault v. Grearson, No. 2:11–cv–63, 2011 WL 4915746, 2011 U.S. Dist. LEXIS 119391 (D.Vt. Oct. 14, 2011) (internal quotations and citations omitted).

II. Eleventh Amendment Immunity

In his original complaint, Plaintiff alleged violations of the ADA pursuant to both Title I, prohibiting discrimination in employment, and Title V, prohibiting retaliation. Defendant moved for dismissal of these claims, asserting that they are barred by the Eleventh Amendment. Plaintiff subsequently voluntarily dropped his Title I claim, but continues with his Title V claim in his Second Amended Complaint. Defendant's briefing of the matter focuses on the Title I claim, although it urges that the conclusion should extend to the Title V claim as well.

The Eleventh Amendment bars a private suit against a state and entities considered arms of the state unless the state unequivocally consents to being sued or Congress “unequivocally express[es] its intent” to abrogate the state's sovereign immunity. In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir.2007) (quoting Tennessee v. Lane, 541 U.S. 509, 517, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004)); Clissuras v. City Univ. of N.Y., 359 F.3d 79, 81 (2d Cir.2004). It is clear that Title I claims against a state are barred by the Eleventh Amendment. Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). As for Title V, the district courts in the Second Circuit that have addressed the issue have all concluded that Title V claims are barred by the Eleventh Amendment. Until now, this issue has remained open in this district. See Bain v. Gorczyk, 2010 WL 5538411, *4, 2010 U.S. Dist. LEXIS 137825, *11 (Dist.Vt. Dec. 3, 2010). The Court resolves this issue, following the reasoning in Chiesa v. N.Y. State Dept. of Labor that, “[i]f a state is immune from underlying discrimination, then it follows that the state must be immune from claims alleging retaliation for protesting against discrimination.” 638 F.Supp.2d 316, 323 (N.D.N.Y.2009).

Title V of the ADA prohibits retaliation “against any individual because such individual has opposed any act or practice made unlawful by this Act ...” 42 U.S.C. 12203(a). Here, Davis's ADA retaliation claim must be based on acts that are unlawful under Title I, the exclusive remedy for employment discrimination claims under the ADA, even when the employer is a public entity. Emmons v. City University of NY, 715 F.Supp.2d 394, 408 (E.D.N.Y.2010). Because Defendant is immune from Plaintiff's underlying ADA claim of employment discrimination under Title I, it should likewise be immune to his Title V retaliation claim that is grounded in acts that are unlawful under Title I.

Accordingly, the Court grants Defendant's Motion and Supplemental Motion to Dismiss count seven of the Second Amended Complaint alleging a violation of Title V of the ADA.

III. Hostile Work Environment

Plaintiff alleges six counts of sexual harassment due to a hostile work environment, three in violation of Title VII of the Civil Rights Act of 1964 and three in violation of the VFEPA. Under Title VII, it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of ... sex.” 42 U.S.C. § 2000e–2(a)(1). Sexual harassment in the form of a hostile work environment constitutes sex discrimination. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). “[V]FEPA is patterned on Title VII of the Civil Rights Act of 1964, and the standards and burdens of proof under [V]FEPA are identical to those under Title VII.” Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 624 A.2d...