Donatello v. Cnty. of Niagara

• Decision Date: 02 June 2016
• Docket Number: 15-CV-39V
• Parties: Elizabeth R. Donatello, Plaintiff, v. County of Niagara, Defendant.
• Court: U.S. District Court — Western District of New York

Elizabeth R. Donatello, Plaintiff, v. County of Niagara, Defendant.

15-CV-39V

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

June 2, 2016

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff Elizabeth Donatello ("Donatello") is an Assistant District Attorney for the County of Niagara (the "County"). Donatello has sued the County, alleging sex-based discrimination, sexual harassment, and retaliation, under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17; and under the New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law §§ 290-301. The County filed a motion (Dkt. No. 32) to dismiss Donatello's second amended complaint under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). The County's Rule 12(b)(1) argument dominates its motion papers. The County argues that Donatello does not qualify as an "employee" under Title VII because she falls under the "personal staff" and "policy making" exceptions to that definition under 42 U.S.C. § 2000e(f). The County further asserts that employee status for Title VII purposes is jurisdictional, meaning that Donatello's inability to qualify as an employee deprives the Court of the power to adjudicate the case. Donatello responds that employee status goes to the merits of a case, not to the Court's subject-matter jurisdiction. Donatello argues in the alternative that any jurisdictional inquiry would be incomplete unless she conducted discovery to help present a full explanation of her job duties and employee status. With respect to discovery, the parties have cross-motions pending—a motion from the County to stay discovery until the Court resolves the motion to dismiss (Dkt. No. 36) and a motion from Donatello to compel discovery that would help with any jurisdictional inquiry into employee status (Dkt. No. 39).

The case was referred to this Court under 28 U.S.C. § 636(b) (Dkt. No. 9), and the Court has deemed all three pending motions submitted under FRCP 78(b). For the reasons below, the Court respectfully recommends denying the County's motion to dismiss and denying the discovery -related cross-motions as moot.

II. BACKGROUND

This case concerns Donatello's allegations that the Niagara County District Attorney's Office has been permeated with derogatory comments about women, hiring and work management policies that discriminated against women, and retaliatory conduct when women make complaints. Donatello began working for the County as an Assistant District Attorney in 2004 and continues to work there. In January 2008, Michael Violante ("Violante") took office as District Attorney¹ and moved Donatello into a full-time position with the Special Victims Unit ("SVU"). According to the second amended complaint, "Violante was responsible for and oversaw all attorneys in the SVU, including Plaintiff." (Dkt. No. 29 at 3.)

Donatello then proceeded in the second amended complaint to describe the environment at her workplace. Throughout his time as District Attorney, Violante allegedly "created a hostileand unwelcoming atmosphere for women, including plaintiff, by making it clear through words and actions that women were held to a wholly different standard than male employees regarding work obligations and hours and by openly judging women on their appearance, including their weight, hair style and breast size." (Id.) Donatello then described several examples of conduct that created the hostile atmosphere. "One particularly offensive comment occurred in in April of 2013, when Violante commented on a case in which an intoxicated, unconscious woman had been raped. Violante commented to Plaintiff, 'Can you believe we're prosecuting this shit?' He went on to say 'that's what boys do; you try to get the girl drunk and then have sex.' As she had done on multiple other occasions when similar offensive comments had been made, Plaintiff expressed to Violante her displeasure with his inappropriate comments. On this occasion Violante merely retorted that, 'Well, I'd try to make sure it was my girlfriend.'" (Id. at 5.)

Next, Donatello described alleged discriminatory behavior and policies at her workplace. "As one example of his expression of a discriminatory policy, Mr. Violante has vocalized his desire to not hire women who he believes were going to have children, and has frequently 'commented' on his preference that women employees use birth control or have tubal ligations." (Id. at 5-6.) A male colleague in the SVU allegedly made over $30,000 more than Donatello even though "he worked many fewer hours, was frequently late to work, and a substantial portion of his work was shifted over to plaintiff. Plaintiff was consequently forced to work substantially more hours and incur much greater stress and job pressure to handle the added workload." (Id. at 6.) When Donatello complained, "Mr. Violante acknowledged the inequity, but refused to take action because he stated that the male co-worker was a single father who had children he needed to carefor . . . . Violante stated that plaintiff had her husband to [] support [] her. He thereby refused to equalize their responsibilities or pay." (Id. at 6-7.) When Donatello suffered an extended illness in 2014, she allegedly "was denied pay and benefits afforded to other employees . . . . On her return to the job, plaintiff was removed from her position in the SVU and placed in a job which requires her to travel more extensively and for which she has not been provided adequate support." (Id. at 9.)

The alleged facts in the second amended complaint also included instances of retaliation. "Whether it involved an inappropriate policy, comment or behavior, at all relevant times, plaintiff has been vocal in objecting to discriminatory behaviors, and has complained both to Mr. Violante and to Human Resources representatives. Despite her complaints, no action has been taken to ameliorate the crude and derogatory behavior and comments and discriminatory policies, which have continued to this date. Defendant has further retaliated against plaintiff for speaking up and asserting her rights." (Id. at 6.) In one instance, on February 27, 2013, Donatello complained that she was overloaded with work and that her workload would improve if her coworker were in the office on a full-time basis. Violante angrily ignored the suggestion. (Id. at 7.) On March 6, 2013, Donatello and Violante had an argument over her complaints about her coworker and how the complaints "were causing problems in the office." (Id.) The argument ended with Violante telling Donatello that she was fired. "Later that day, Plaintiff received a hand delivered letter to her home from Violante stating his conditions which would allow Plaintiff to return to work. A meeting was arranged for the following week. At the meeting, Plaintiff was told that Violante would deal with the co-worker in whatever manner he saw fit and Plaintiff would have to accept it. Plaintiff'scomplaints were not addressed and she was told to stop objecting to the disparate treatment. Since Plaintiff needed her job, and because she wanted to continue to work for the SVU crime victims, Plaintiff agreed to the terms and returned to her duties." (Id.; see also Dkt. No. 13-5 at 23-25.) Later that year, on September 3, 2013, a local newspaper published a negative article about Donatello and her complaints about her workplace. (See Dkt. No. 29 at 8; Dkt. No. 13-4.) Donatello believes that someone from the County furnished the information to the newspaper.

Prior to any litigation, Donatello filed discrimination and retaliation charges with the Equal Employment Opportunity Commission ("EEOC") on October 17, 2013 and June 6, 2014. The parties do not dispute that Donatello complied with the necessary administrative prerequisites to litigation in a timely fashion. The parties do not dispute that Donatello filed her original complaint in a timely fashion as well.

Donatello filed her second amended complaint on March 22, 2016. The second amended complaint contained four claims. In the first claim, Donatello accused the County of discrimination in violation of Title VII. In the second claim, Donatello accused the County of sexual harassment in violation of Title VII. In the third claim, Donatello accused the County of retaliation in violation of Title VII. In the fourth claim, Donatello accused the County of retaliation in violation of the NYSHRL.

The County filed its motion to dismiss on March 24, 2016. The County contends that the Court lacks subject-matter jurisdiction over Donatello's Title VII allegations because the statute covers only "employees," and Donatello falls under two jurisdictional exceptions to employee status described in 42 U.S.C. § 2000e(f). "Assistant district attorneys, including Donatello, areappointed and removed by the district attorney, an elected public official. They are required by statute to perform work that the district attorney directs, assigns, and supervises. The obligations of this role, and the sensitive nature of the work, demand a close working relationship with the district attorney, to whom an assistant district attorney is, ultimately, held personally accountable. Accordingly, assistant district attorneys are the personal staff of an elected official and are exempt from Title VII protections. Moreover, Donatello is also in a policy making position under Second Circuit precedent." (Dkt. No. 32-1 at 6.) According to the County, another statute exists to provide relief for people like Donatello who do not qualify as employees under Title VII, but Donatello did not satisfy that statute's prerequisites. Once the Title VII claims are dismissed, the County prefers that the Court decline to exercise supplemental jurisdiction over Donatello's NYSHRL claim. Donatello disagrees that the exemptions listed in 42 U.S.C. § 2000e(f) are jurisdictional. "While no cases in the Second Circuit or any district court in New York hold specifically...