Mahoney v. City of Albany

• Decision Date: 22 December 2022
• Docket Number: 534635
• Citation: 211 A.D.3d 1408,181 N.Y.S.3d 716
• Parties: Dawn MAHONEY, Respondent, v. CITY OF ALBANY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 1408

181 N.Y.S.3d 716

Dawn MAHONEY, Respondent,

v.CITY OF ALBANY et al., Appellants.

534635

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 22, 2022

Decided and Entered: December 22, 2022

The Rehfuss Law Firm, PC, Latham (Stephen J. Rehfuss of counsel), for appellants.

Finn Law, Albany (Ryan M. Finn of counsel), for respondent.

Before: Lynch, J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Lynch, J.P. Appeal from an order of the Supreme Court (Christina L. Ryba, J.), entered November 23, 2021 in Albany County, which, upon reargument, adhered to its prior decision partially denying defendants’ motion for summary judgment dismissing the complaint.

From 1999 until 2017, plaintiff was a civilian dispatcher employed by defendant City of Albany in the communications center of the Albany Police Department (hereinafter APD). In 2013, plaintiff voluntarily accepted a demotion to transfer to the "B shift" — i.e., the day shift — where she worked alongside defendant John Tierney, a civilian senior dispatcher who, owing to his seniority, occasionally exercised supervisory responsibilities over plaintiff. On September 19, 2015, plaintiff reported to Charles Barthe, a shift supervisor, that Tierney made inappropriate comments about her appearance and that she observed Tierney watching a movie depicting sexual content while on duty. The Office of Professional Standards (hereinafter OPS), a unit of APD, investigated plaintiff's complaint, during which Tierney was suspended without pay for 30 days. In addition to plaintiff and Tierney, OPS officers interviewed plaintiff's coworkers, including defendant Mark Seymour, a shift supervisor until demoted in 2014 or 2015 to dispatcher; defendant Kenneth Marks, a senior dispatcher assigned to B shift; and defendant Joseph Carnevali, the APD lieutenant in charge of the communications center. At the conclusion of the investigation, Tierney was reinstated with backpay.

Plaintiff commenced this action in November 2016 pursuant to 42 USC § 1983 and the Human Rights Law (see Executive Law art 15), alleging claims of hostile work environment, adverse employment actions and retaliation. Defendants joined issue and, after discovery, moved for summary judgment dismissing the complaint. Supreme Court partially granted the motion and dismissed plaintiff's adverse employment action and retaliation claims. The court declined to dismiss the hostile work environment claims, finding questions of fact remained as to whether and to what degree each individual defendant was liable therefor. Defendants then moved to reargue, seeking a decision on several of their arguments advanced during motion practice but not passed upon. Supreme Court granted reargument on the individual defendants’ claims of qualified immunity but found questions of fact precluded dismissal of the complaint on that basis. The court therefore adhered to its prior decision partially denying defendants’ summary judgment motion. Defendants’ appeal.

It is well established that the Equal Protection Clause of the U.S. Constitution and the Human Rights Law of this state secure the right to be free of a gender-hostile work environment in public employment (see Executive Law § 296[1][h] ; Kern v. City of Rochester, 93 F.3d 38, 43 [2d Cir.1996], cert denied 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d 494 [1997] ; Burhans v. Lopez, 24 F.Supp. 3d 375, 380 [S.D.N.Y.2014] ; Golston–Green v. City of New York, 184 A.D.3d 24, 41, 123 N.Y.S.3d 656 [2d Dept. 2020] ). Correspondingly, individual defendants may be held liable under the federal civil rights statute and the Human Rights Law for conduct creating such a hostile work environment (see 42 USC § 1983 ; Executive Law § 296[6] ).

Both federal and state law recognize the doctrine of qualified immunity, which shields public officials from damages liability arising from the performance of their duties. In the federal context, public officials may invoke qualified immunity under 42 USC § 1983 "unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time" ( Relf v. City of Troy, 169 A.D.3d 1223, 1225, 94 N.Y.S.3d 672 [3d Dept. 2019] [internal quotation marks and citations omitted]). With respect to the second prong, it has long been established that "[p]ublic employees have a clear right, protected by the Fourteenth Amendment, to be free from discrimination on the basis of sex in public employment" ( Raspardo v. Carlone, 770 F.3d 97, 114 [2d Cir.2014] [internal quotation marks and citations omitted]). Thus, on a motion for summary judgment seeking dismissal based on qualified immunity, the evaluation of the first prong is, essentially, an evaluation of the merits of the underlying claim (see id. at 113 ).

Hostile work environment claims under 42 USC § 1983 require a showing that "the workplace [was] permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" ( Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 310, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] [internal quotation marks and citation omitted]; accord Golston–Green v. City of New York, 184 A.D.3d at 41, 123 N.Y.S.3d 656 ). The acts must be alleged to have occurred because of gender and under color of state law (see 42 USC § 1983 ; Kennedy v. New York, 167 F.Supp. 3d 451, 460 [W.D.N.Y.2016] ). "The incidents complained of must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive" ( Raspardo v. Carlone, 770 F.3d at 114 [internal quotation marks and citation omitted]). "There is no mathematically precise test" for making this assessment ( id. [internal quotation marks and citation omitted]). "Instead, courts must assess the totality of the circumstances, considering elements such as the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance" ( id. [internal quotation marks and citation omitted]).

In the 42 USC § 1983 context, liability of an individual defendant is based on his or her "personal involvement in the alleged constitutional deprivation" ( Grullon v. City of New Haven, 720 F.3d 133, 138 [2d Cir.2013] ). Individual defendant liability only attaches when his or her own conduct is sufficiently severe and pervasive to create the hostile work environment; otherwise, that defendant is protected by qualified immunity (see Raspardo v. Carlone, 770 F.3d at 115 ). Correspondingly, "liability for supervisory government officials cannot be premised on a theory of respondeat superior because [ 42 USC] § 1983 requires individual personalized liability on the part of each government defendant" ( id. at 116 ). Although the precise "contours of the supervisor liability test" remain to be determined ( id. at 117 ), personal involvement "may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [a plaintiff] by failing to act on information indicating that unconstitutional acts were occurring" ( id. at 116, quoting Colon v. Coughlin, 58 F.3d 865, 873 [2d Cir.1995] ; see Grullon v. City of New Haven, 720 F.3d at 139 ).

Under state law, public officials are protected by qualified immunity for discretionary acts that are unlawful under the Human Rights Law unless "they are undertaken in bad faith or without reasonable basis" ( Hiller v. County of Suffolk, 81 F.Supp. 2d 420, 423 [E.D.N.Y.2000] ; see Dawson v. County of Westchester, 351 F.Supp. 2d 176, 199–200 [S.D.N.Y.2004] ; see generally Arteaga v. State of New York, 72 N.Y.2d 212, 216–217, 532 N.Y.S.2d 57, 527 N.E.2d 1194 [1988] ). Hostile work environment claims under the Human Rights Law are evaluated under the same severe-or-pervasive standard as a claim brought pursuant to 42 USC § 1983 (see Golston–Green v. City of New York, 184 A.D.3d at 41, 123 N.Y.S.3d 656 ; Reynolds v. State of New York, 180 A.D.3d 1116, 1117–1118, 119 N.Y.S.3d 266 [3d Dept. 2020] ). Further, the Human Rights Law provides that it "shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under [the Human Rights Law], or to attempt to do so" ( Executive Law § 296[6] ), including harassment based on sex or gender identity or expression (see Executive Law § 296[1][h] ). "[A]n individual defendant may be held liable under the aiding and abetting provision of the [Human Rights Law] if he [or she] actually participates in the conduct giving rise to a discrimination claim" ( Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n 10 [2d Cir.2011] [internal quotation marks and citation omitted], cert denied 565 U.S. 1260, 132 S.Ct. 1744, 182 L.Ed.2d 530 [2012] ). Similarly, "[a] supervisor is an employer for purposes of establishing liability under the [Human Rights Law] if that supervisor actually participates in the conduct giving rise to the discrimination" ( Feingold v. New York, 366 F.3d 138, 157 [2d Cir.2004] [internal quotation marks, brackets and citation omitted]).

As provided in APD's general order dated November 19, 2014, sexual harassment includes "[u]nwelcomed sexual advances, request for sexual favors or other verbal or physical conduct of a sexual nature;...