Oliver v. N.Y. State Police

• Decision Date: 27 April 2020
• Docket Number: 1:15-cv-00444 (BKS/DJS)
• Parties: JEAN OLIVER, Plaintiff, v. NEW YORK STATE POLICE; JOSEPH D'AMICO, in his individual and official capacity; FRANCIS CHRISTENSEN, in his individual and official capacity; MICHAEL CERRETTO, in his individual and official capacity; WAYNE OLSON, in his individual and official capacity; STEVEN NIGRELLI, in his individual and official capacity; MARTIN MCKEE, in his individual and official capacity; TIMOTHY OWENS, in his individual and official capacity; PAUL KELLY, in his individual and official capacity; TIMOTHY BOUR, in his individual and official capacity; and GARY KOPACZ, in his individual and official capacity, Defendants.
• Court: U.S. District Court — Northern District of New York

JEAN OLIVER, Plaintiff, v. NEW YORK STATE POLICE; JOSEPH D'AMICO, in his individual and official capacity;

FRANCIS CHRISTENSEN, in his individual and official capacity;

MICHAEL CERRETTO, in his individual and official capacity;

WAYNE OLSON, in his individual and official capacity;

STEVEN NIGRELLI, in his individual and official capacity;

MARTIN MCKEE, in his individual and official capacity;

TIMOTHY OWENS, in his individual and official capacity;

PAUL KELLY, in his individual and official capacity;

TIMOTHY BOUR, in his individual and official capacity;

and GARY KOPACZ, in his individual and official capacity, Defendants.

1:15-cv-00444 (BKS/DJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

April 27, 2020

Appearances:

Plaintiff pro se:

Jean Oliver

Fort Belvoir, VA 22060

For Defendants New York State Police,

D'Amico, Christensen, Cerretto, Olson,

Nigrelli, Owens, Kelly, Bour, and Kopacz:

Daniel J. Moore

Joshua D. Steele

Harris Beach PLLC

99 Garnsey Road

Pittsford, NY 14534

For Defendant McKee:

Lisa F. Joslin

Daniel A. Jacobs

Gleason, Dunn, Walsh & O'Shea

40 Beaver Street

Albany, NY 12207 Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Jean Oliver brings this employment discrimination action against Defendant New York State Police ("NYSP") and ten NYSP employees, including the Superintendent of the NYSP and several of her former supervisors. (Dkt. No. 37). Plaintiff alleges that during her employment with the NYSP, she was subject to gender discrimination, a hostile work environment based on sex, retaliation, disability discrimination, and conspiracy. The Second Amended Complaint advances claims under: Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. (First-Third Causes of Action); the Rehabilitation Act, 29 U.S.C. § 701 et seq. (Fourth Cause of Action); the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1983 (Fifth-Tenth Causes of Action); 42 U.S.C. § 1985 (Eleventh-Thirteenth Causes of Action); 42 U.S.C. § 1986 (Fourteenth-Sixteenth Causes of Action); and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. (Seventeenth-Twentieth Causes of Action). (Dkt. No. 37). Presently before the Court are Defendants' motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, (Dkt. Nos. 256, 259), and Plaintiff's opposition, (Dkt. Nos. 289, 290, 293).

II. RECORD BEFORE THE COURT

Along with their motion for summary judgment Defendants—as required by Local Rule 56.2— provided Plaintiff with a copy of the Northern District of New York's "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion." (Dkt. Nos. 256-7; 259-22). It advises that "[a] response to the defendants' statement of material facts" must "admit[] and/or den[y] each of the defendants' assertions in matching numbered paragraphs," and "support[] each denial with citations to record evidence." (Id.) (quoting N.D.N.Y. L.R.7.1(a)(3)). Here, in accord with the Local Rules, Defendants filed Statements of Material Facts, with citations to the record for each. (Dkt. Nos. 256-1; 259-20). In her response to Defendants' Statements of Material Facts, Plaintiff often omitted any citations to the record. (See, e.g., Dkt. No. 293-10, ¶ 42; Dkt. No. 293-1, ¶ 74).

Defendants argue that because Plaintiff's responses "make[] virtually no citations to record evidence and include improper arguments and personal attacks," (Dkt. No. 302, at 13; see also Dkt. No. 300, at 6-13), Defendants' facts "should be accepted as true." (Dkt. No. 302, at 14; Dkt. No. 300, at 6). Under these circumstances, the Court may "deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." Local Rule 7.1(a)(3). While the Court "is not required to consider what the parties fail to point out," in deference to Plaintiff's pro se status, the Court has nevertheless conducted "an assiduous review of the record" to determine whether evidence supports Plaintiff's claims. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Therefore, the facts have been drawn from the Defendants' Statements of Material Facts and Plaintiff's responses, which are supported by record evidence, (Dkt. Nos. 256-1, 259-20, 293-1, 293-10), the verified Second Amended Complaint, (Dkt. No. 37), and the exhibits attached to the parties' submissions.¹ The facts are taken in the light most favorable to Plaintiff. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).

III. FACTS

A. Plaintiff's Employment with the NYSP - Overview

Plaintiff began her employment with the NYSP in 1997. (Dkt. No. 256-1, ¶ 19). "After completing her training, [Plaintiff] served as a trooper on road patrol at various locations"throughout the state from 1998 to 2005. (Id. ¶ 20). In 2005, Plaintiff "was promoted to the rank of Investigator and was assigned to the Video Lottery Unit at Batavia Downs." (Id. ¶ 23). In 2008, after the Video Lottery Unit closed, Plaintiff was assigned to the Community Narcotics Enforcement Team Western ("CNET Western" or "CNET West") in Batavia, New York, where she worked as an undercover narcotics investigator until 2014. (Id. ¶¶ 25, 170). From 2014 to 2015, she worked in the Counter-Terrorism Intelligence Unit ("CTIU") in Buffalo, New York. Throughout her employment, Plaintiff received numerous letters of appreciation and commendation, (Dkt. No. 289-6, at 11-14, 15, 22, 24-30, 34-41, 45-50, 57, 59-72, 74, 78-82, 84, 86-88, 90, 95, 99), an award for excellent police service, (id. at 75), recognition by the NYSP Superintendent for her investigative work, and performance evaluations and observations commending her "exceptional performance." (Dkt. No. 289-3, at 3, 4, 13-14; Dkt. No. 289-6, at 42-43, 85). In addition, Plaintiff's 1999 to 2014 performance appraisals reflect ratings of "satisfactory" and indicate that she met or exceeded all performance standards. (Dkt. No. 289-6, at 110-210). On July 14, 2015, following a disciplinary hearing on charges of, inter alia, failure to obey an order and being untruthful during an interrogation by the Internal Affairs Bureau ("IAB"), Plaintiff's employment was terminated.² (Dkt. No. 256-1, ¶ 231).

B. CNET West

CNET West "covered a large geographical area in the western part of New York, including Rochester and Buffalo"; CNET West's main office was in Batavia, New York. (Id. ¶ 26). During the relevant time period, there were 7 "regionally aligned" teams: 3 in the western region (the Buffalo area), 3 in the eastern region (the Rochester area), and 1 in the Southern Tier.(Dkt. No. 289, at 6). Typically, each team was comprised of a senior investigator ("SI") and 4 investigators, and team assignments were "based on the individual's home of record." (Id. at 6-7).

In 2008, "[w]hen [Plaintiff] first joined CNET West, she was assigned" as an investigator "to SI Vern McMillen's team" in the western region. (Dkt. No. 256-1, ¶ 31; Dkt. No. 289, at 7). CNET Investigators were responsible for, among other things, initiating and developing narcotics-related investigations, participating in undercover operations, debriefings of persons in custody, complainants, and potential cooperating sources, and assisting in investigations throughout the region. (Dkt. No. 256-1, ¶ 30). CNET Investigators were also required to complete and maintain all paperwork, consistent with unit, detail, and Division policy, "for review by the administrative SI," in this case, Defendant SI Paul Kelly. (Id. ¶¶ 30, 39). "[E]ach of the teams worked out of satellite offices" in their region and returned to the "Batavia office every Tuesday to submit all administrative paperwork." (Dkt. No. 289, at 7).

C. 2008 Sexual Harassment Complaint

In December 2008, Plaintiff informed SI Charles Torres that a captain assigned to Troop A had tried to kiss her. (Dkt. No. 256-1, ¶ 33). SI Torres reported Plaintiff's complaint to Human Resources, which assigned SI June Bradley—regional supervisor in charge of the NYSP's Equal Employment Opportunity ("EEO") program—"to work with [IAB] to investigate the claims." (Dkt. No. 256-1, ¶ 34; Dkt. No. 256-2, at 130). After reporting the captain, Plaintiff received a telephone call from Defendant Lieutenant Martin McKee, the Officer in Charge of CNET West, (Dkt. No. 256-1, ¶ 8; Dkt. No. 289, at 7), who told her they were "just talking about this whole case" and that they did not "think [Plaintiff was] lying about this." (Dkt. No. 256-2, at 138). The IAB deemed the allegations against the captain "founded" and the captain retired. (Dkt. No. 256-1, ¶ 35; Dkt. No. 256-2, at 125).

D. Alleged Harassment at CNET West

1. SI Kelly

Plaintiff alleges that while at CNET, SI Kelly sexually harassed her, "singled [her] out" and "ordered" her "to return to the office in Batavia at least one or two [days in addition to Tuesdays], in the absence of her supervisor and . . . her teammates," and targeted her with numerous written and verbal criticisms of her work because she is female. (Dkt. No. 289, at 7-10).

Plaintiff testified that following the 2008 IAB investigation into her allegations of sexual harassment, she was at a Christmas party and "everybody" was saying "Merry Christmas and hugging," and SI Kelly said to her: "Oh, Jean, I'd hug you but . . . that whole [captain] thing. I don't want to get fired. Ha, ha, ha." (Dkt. No. 256-2, at 137). Plaintiff found this "embarrassing" and testified that Kelly made "a big joke about it" and "kept planting" "that whole [captain] thing" in conversations.³ (Id. at 139).

Plaintiff alleges that SI Kelly "jump[ed] the chain of command," bypassing her supervisors, and requiring her "to report directly to him . . . throughout the week." (Dkt. No. 289, at 10-11). If she did not report to SI Kelly, "she would be ordered to return to the Batavia office, only to receive a harsh verbal reprimand or some formal counseling session"...