Hauff v. State Univ. of N.Y.

• Decision Date: 03 December 2019
• Docket Number: 18-CV-7256 (DRH)(ARL)
• Citation: 425 F.Supp.3d 116
• Parties: Keri HAUFF, Plaintiff, v. STATE UNIVERSITY OF NEW YORK, Farmingdale State College, and Marvin Fischer, in his individual and official capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

425 F.Supp.3d 116

Keri HAUFF, Plaintiff,

v.STATE UNIVERSITY OF NEW YORK, Farmingdale State College, and Marvin Fischer, in his individual and official capacity, Defendants.

18-CV-7256 (DRH)(ARL)

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

Signed December 3, 2019

For Plaintiff: Fenley LLP, 260 Montauk Highway Suite #1, Bay Shore, New York 11706, By: Jason P. Fenley, Esq.

For Defendant State University of New York, Farmingdale State College: Letitia James, Attorney General of the State of New York, 300 Motor Parkway, Suite 230, Hauppauge, New York 11788, By: Lori L. Pack, Esq.

For Defendant Marvin Fischer : Sokoloff Stern LLP, 179 Westbury Avenue, Carle Place, New York, 11514, By: Mark A Radi, Esq.

MEMORANDUM & ORDER

HURLEY, Senior District Judge:

Plaintiff Keri Hauff ("Plaintiff" or "Hauff") commenced this action against defendants State University of New York ("SUNY"), Farmingdale State College (the "College") (together "State Defendants") and Marvin Fischer ("Fischer") (Fischer and State Defendants are collectively referred to as "Defendants") pursuant to Title IX of the Education Amendments of 1982, 20 U.S.C.§§ 1681 et seq. ("Title IX") and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq ("NYSHRL"). Presently before the Court are Defendants' motions to dismiss pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motions are granted in part and denied in part.

BACKGROUND

The following allegations are taken from the Complaint ("Comp.") and assumed true for purposes of this motion.

SUNY is a system of public institutions, responsible for the enrollment of over 400,000 students and the employment for 80,000 persons. The College is a college within the SUNY system. Both SUNY and the College are recipients of local, state and federal funding. SUNY oversees the New York State University Police, which operates the College's University Police Department ("UPD"). During the relevant period, Fischer was the Chief of the UPD. (Comp. ¶¶ 10-13.)

Plaintiff began her employment with the UPD as a police officer in about September 2005 at the age of 24. She was the only female police officer on the UPD, and from the start, she faced inappropriate conduct and sexual harassment at the hands of Fischer. In July of 2005 at the UPD police academy, Defendant Fischer pulled Ms. Hauff aside from the rest of the police cadets and asked her if she wanted to sit in his car with the air conditioning on. Chief Fischer ogled Plaintiff, made inappropriate comments, and engaged in unwanted advances and touching throughout Plaintiffs career. Fischer would say to Plaintiff in a manner suggesting sexual attraction, "I like you" and "I have my eye on you." When the UPD provided security at the 2009 U.S. Open Golf Tournament at Bethpage State Park, Fischer told Ms. Hauff that she did not have to "work a post" but could drive around with him instead. (Comp. ¶¶ 14-23.)

In May of 2010, Plaintiff confronted Fischer and told him that he was harassing her. Plaintiff enrolled in a cardiac sonography program with the intent of eventually leaving the UPD. Plaintiff later abandoned plans to leave her position with the UPD and instead took a "plain-clothes" assignment with the UPD as an Accreditation Co-Manager. Even after this new assignment, Fischer would stand uncomfortably close to Plaintiff, make crude sexual remarks, ogle and leer at Plaintiff, and touch Plaintiff's back and hands. This behavior occurred two to three times a week. Daniel Daugherty ("Daugherty"), at the time the Accreditation Co-Manager and later the Deputy Chief of the UPD, witnessed these incidents. (Id. at ¶¶ 25-35.)

On September 2, 2015 Fischer slapped Plaintiffs buttocks as she bent over to place a folder in a filing cabinet. Fischer then remarked, "I bet your husband doesn't even do that." Plaintiff was horrified and humiliated and confronted Fischer and told him that could never happen again to which he responded "duly noted." This slapping incident convinced her that a formal complaint was necessary. (Id. at ¶¶ 41-45.)

Plaintiff went to see Dr. Veronica Henry, the College's Title IX Coordinator. Despite Plaintiff being upset, Dr. Henry required Plaintiff to complete the Title IX complaint packet right then and there. Although Plaintiff checked the box for a formal complaint, Dr. Henry steered Plaintiff away from the formal process, misled Plaintiff about the length of the formal complaint process, and pressured Plaintiff to pursue the informal resolution process. (Id. at ¶¶ 49-53.)

As part of the informal process, Fischer admitted to slapping Plaintiffs buttocks and described the act as "an attempt to have some levity in an extremely busy day and break up what I perceived to be stress". Daugherty admitted to witnessing the slapping incident and the subsequent comment. On September 16, 2015, a Memorandum Resolution was reached, effectively banning further communication between Plaintiff and Fischer. Because the communication ban proved impractical given Plaintiffs duties, Plaintiff and the College agreed to lift the ban on the condition that all communications be "conducted [ ] in a professional/business related manner only; no personal information shall be asked or inclinations perceived at any time." (Id. at ¶¶ 54-61.)

In April of 2016, Plaintiff was promoted to Investigator. Her new role required even more contact with Fischer, and "as the contact between Plaintiff and Fischer increased so did the harassment." However, no specific instances of harassment for 2016 are described in the complaint. In 2017 Plaintiff began to keep a journal of "the most egregious incidents." Fischer would preface his sexually harassing comments to Plaintiff with qualifiers like "can I say this without getting in trouble" or "I am probably going to get in trouble for saying this, but...." The incidents after her promotion included Fischer referring to a female witness' breast size and using his hands to emphasize large breasts, Fischer asking Plaintiff if he could put up a photo of Plaintiff with two other female police officers on his desk, and Fischer, in the presence of Plaintiff, instructing female officers and staff to use "what they have to get what they want." On July 20, 2017 Fischer entered Daugherty's office where Plaintiff was standing and working with Daugherty. Fischer sat close enough to Plaintiff that he was "almost touching her with his upper legs and thighs." Plaintiff turned away, and when her radio, which was fastened to her belt, made noise, Fischer reached over and grabbed it. "At one point during her tenure, Daugherty said to Plaintiff, "all you ever wanted to do was come to work and do your job, but instead you have to deal with him [Fischer]." On July 21, 2017, Fischer in a common area of the UPD offices, told his secretary to "go back to my office so you can hear [a female officer] orgasm" after that officer received her new taser holster. On September 12, 2017, Fischer again violated the terms of the Memorandum and the 2016 amendment when he "inquired about the Plaintiff's daughter." (Id. at ¶¶ 62-76.)

On September 15, 2017 "Plaintiff visited Dr. Henry and requested that her journal entries be made part of the complaint file against Fischer. Dr. Henry's secretary ... stamped the documents received and placed then in the complaint file." Plaintiff "assumed there would be a follow-up investigation from the Title IX office" but there was none. (Id. at ¶¶ 78-79.)

On March 28, 2018 Fischer badgered Plaintiff over an issue regarding evidence bags and waived his fist at her. When the officers received an invitation to attend Title IX training, Fischer told Plaintiff that there was "a piece of paper in Dr. Henry's desk preventing us from going together." On August 3, 2018, when a conversation between Fischer and Plaintiff ended, Fischer told Plaintiff "Ok, go on and get your cute little ass outta here." Four days later, Fischer blocked Plaintiffs path to her office and told her "you look really really good today, but that's beside the point" and then began swaying back and forth on his feet while closing his eyes. (Id. at ¶¶ 81-84.)

On August 14, 2018, Plaintiff filed another complaint with the College's Title IX Coordinator, Frank Rampello, who had replaced Dr. Henry. When Mr. Rampello retrieved the file on Fischer, the journal entries that Plaintiff had submitted to Dr. Henry on September 15, 2017, were missing. (Id. at ¶¶85-87.)

Mr. Rampello convened a panel to investigate Plaintiff's complaint. After a hearing, the panel substantiated the complaint. It also found that Fischer failed to abide by the stipulations of the 2015 agreement. It recommended that Fischer not be allowed to return to the campus in any capacity. On September 24, 2018, the College's president adopted the panel's findings and required that Fischer separate from service accepting his irrevocable letter of resignation. Notwithstanding that Fischer was forced to resign the College's president sent out a campus wide email wishing him good luck on his retirement. "Fischer has be[en] allowed to return to campus on more than one occasion since his separation from service." (Id. at ¶¶ 88-96.)

Based on the foregoing allegations, Plaintiff asserts four causes of action. The first and third causes of action are against the State Defendants for sexual harassment/ hostile workplace in violation of Title IX and the NYSHRL, respectively. The second and fourth causes of action assert that Fischer is liable for aiding and abetting a violation of Title IX and of the NYSHRL, respectively.

DISCUSSION

I. Applicable Standards

A. Federal Rule of Civil Procedure 12(b)(1)

A case may properly be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). It is also the proper vehicle for arguments that a...