Orsaio v. N.Y. State Dep't of Corr.

• Decision Date: 19 August 2019
• Docket Number: 6:17-cv-00685 (BKS/TWD)
• Parties: REGINA ORSAIO, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; ANTHONY ANNUCCI, Acting Commissioner of DOCCS; RONALD HESS, Bureau Chief; and SUSAN HROVAT, Senior Parole Officer, Defendants.
• Court: U.S. District Court — Northern District of New York

REGINA ORSAIO, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION;ANTHONY ANNUCCI, Acting Commissioner of DOCCS; RONALD HESS, Bureau Chief;and SUSAN HROVAT, Senior Parole Officer, Defendants.

6:17-cv-00685 (BKS/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 19, 2019

Appearances:

For Plaintiff:

Carlo A. C. de Oliveira

Cooper Erving & Savage LLP

39 North Pearl Street, Fourth Floor

Albany, NY 12207

For Defendants:

Letitia James

Attorney General of the State of New York

Aimee Cowan

Assistant Attorney General

615 Erie Boulevard West, Suite 102

Syracuse, NY 13204

Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Regina Orsaio brings this action against Defendants New York State Department of Corrections and Community Supervision ("DOCCS"), DOCCS Acting Commissioner Anthony J. Annucci in his official capacity, DOCCS Utica Area Office Bureau Chief Ronald Hess in his official capacity, and DOCCS Utica Area Office Senior Parole Officer Susan Hrovat in her official capacity, alleging that she suffered employment discrimination, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law §§ 290-301. (See Dkt. No. 1, ¶¶ 62-106). Plaintiff seeks compensatory damages, punitive damages, and injunctive relief. (Id. ¶ 109). Defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 30). For the reasons set forth below, the motion is granted in part and denied in part.

II. FACTS¹

A. Plaintiff's Employment at DOCCS

Plaintiff joined DOCCS as a parole officer ("PO") in 2006. (Dkt. No. 30-1, ¶ 1). Plaintiff first worked at the Syracuse Area Office and later transferred to the Utica Area Office. (Id. ¶¶ 1-2; Dkt. No. 30-12, at 8-10). In 2008, Plaintiff. (Dkt. No. 30-1, ¶ 2). As a parole officer, Plaintiff supervised a caseload of parolees. (See Dkt. No. 30-1, ¶ 4). She and other parole officers in her unit were supervised by a senior parole officer ("SPO"); in turn, SPOs were overseen by a supervising parole officer—also referred to as a bureau chief or area supervisor. (See id. ¶¶ 5, 7). Plaintiff's direct supervisor between 2014 and December 2015 was SPO Randy Blais. (Dkt. No. 30-17, at 16). Subsequently, Plaintiff's supervisor was SPO Nick Pezdek and then Defendant Hrovat. (Id. at 17, 38).² From 2012 until he retired in September 2017, Defendant Hess was the bureau chief for the Utica Area Office Bureau. (Dkt. No. 30-1, ¶ 8; Dkt. No. 30-13, at 20-21)

B. Plaintiff's Sexual Orientation

Plaintiff identifies as a gay female and to her knowledge was the only gay employee in the Utica Area Office at all relevant times. (See Dkt. No. 30-12, at 28-29, 33). At her deposition, Plaintiff testified that a secretary named Francesca LaRosa knew about her sexual orientation as early as 2014, as Francesca knew Plaintiff "from outside, in the community." (Id. at 28-29).³ According to this testimony, Hess learned Plaintiff was gay because the secretaries "would also talk" and were "friends" with Hess. (Id. at 29). Plaintiff recounted that LaRosa

was very loud, for lack of a better word, and [would] say things with [Hess]. He would be in the lunchroom and she would yell something out or he would be next to her and she would say something. . . . [H]e would have to have been deaf not to hear it.

(Id.). As for other people with knowledge of her sexual orientation, Plaintiff recalled that her coworker Lana Jolma knew because "she talked to me about my girlfriend," (id.), and PO Jose Schwarz-Castillo had met Plaintiff's girlfriend at the entry door outside the parole office. (Id. at 37).⁴ PO Karol Anderson, who worked at the Utica Area Office during the relevant period, submitted an affidavit stating that Plaintiff's sexual orientation "was mentioned a few times in conversations with co-workers" in "2014/2015" and "was common knowledge in the Utica Area Office." (Dkt. No. 33-5, ¶¶ 3, 4).

Plaintiff and Hess never spoke about her sexual orientation, (id. at 29-31), and she never heard him make derogatory comments about anyone's sexual orientation, (id. at 35). But in late 2014, Schwarz-Castillo and PO John Carswell told Plaintiff that Hess did not like her. (Id. at 35-36). Schwarz-Castillo told her it was "[b]ecause you don't like cock." (Id. at 36).

According to Plaintiff's testimony, Hess learned about her sexual orientation at some point after September 2014 because "[t]hat's when I noticed his behavior towards me changing." (Id. at 28). While Plaintiff had had "[n]o problems with him" before then, Hess stopped talking to her after that date (Id. at 31).⁵ Over time, "because of how Hess was acting," other officers "ostracized" her—they started "avoiding" her, and "if they would go on a custody situation, to look for someone, an absconder, or transport someone to the jail who was in custody, no one would ask [her] any longer and no one would include [her] any longer." (Id. at 87-88; see also id. at 83 (Plaintiff testifying that the other officers "were all afraid of" Hess, who kept her "isolated, segregated" and "wouldn't let [her] participate in anything")). Hess became "unapproachable" and gave Plaintiff "filthy looks"; if she "walk[ed] by," she could "hear him say, 'Douche bag.'" (Id. at 38). On one occasion, Plaintiff observed Hess mimicking her limp in front of two secretaries, causing them to laugh. (Id. at 118-19). This treatment made Plaintiff "very emotional," and she "sat at [her] desk crying half the time." (Id. at 210).⁶

In October 2015, Plaintiff discovered that a photograph of her posted on the office bulletin board had been defaced with a beard and mustache drawn over. (Id. at 89-91; see Dkt. No. 30-67, at 1). Some other photographs on the bulletin board showed alterations, including markings over the faces of male employees. (See Dkt. No. 30-67, at 2-3). Plaintiff did not know if Hess was aware of the defacement. (Dkt. No. 30-12, at 95). Hess testified that the first time he saw the defaced photograph of Plaintiff was when "the Office of Diversity Management called and asked" about it—i.e., after Plaintiff complained. (Dkt. No. 30-13, at 181-83).

Plaintiff does not conform to traditional gender stereotypes. (Dkt. No. 30-12, at 208). She "wear[s] men's clothing" and is "not ultra feminine." (Id.). Asked if anyone at the office ever made comments about her clothes, Plaintiff recalled a comment by PO John Martin at a time when she was "ostracized and isolated" and "Hess was putting the whole office against me." (Id. at 209). Although Plaintiff had never worn a tie to the office, Martin asked, "No tie today?" (Id.).

Defendant Hrovat testified she was not aware of Plaintiff's sexual orientation. (Dkt. No. 30-14, at 58). Although Plaintiff never discussed her sexual orientation with Hrovat, (Dkt. No. 30-12, at 30), Plaintiff denies Hrovat's lack of knowledge, asserting that her sexual orientation was common knowledge in the office and further noting that she does not fit traditional gender stereotypes, (Dkt. No. 33, ¶ 87). At her deposition, Plaintiff was asked about the basis for her belief that Hrovat discriminated against her based on sexual orientation. (Dkt. No. 30-12, at 128). She answered, "Because when she gave the time management example to me she used a transgender story to do it." (Id. at 129). Plaintiff was referring to a story that Hrovat relayed when counseling Plaintiff on time management. (Dkt. No. 30-14, at 71). Hrovat recounted that once she had interviewed a transgender parolee and "it was super interesting"; as a result, the interview took longer than expected. (Id.). Hrovat testified that, with this example, she "was simply trying to help [Plaintiff] understand that you can get some of [the interviews] done quickly and some you can't." (Id.). But Plaintiff thought this was an "inappropriate story." (Dkt. No. 30-12, at 211 ("I don't think professional supervisors giving a time management example should go into a transgender, I don't know if it's a he or she or she or he, to an employee.")).

C. Work-Related Issues in 2014-2015

1. Assignment to SIST

Plaintiff applied for and was assigned to the strict intensive supervision treatment ("SIST") caseload in 2011. (Dkt. No. 30-1, ¶ 154; Dkt. No. 30-12, at 45-46). There was only oneSIST officer in the Utica Area Office during Hess's tenure. (Dkt. No. 30-1, ¶ 164). SIST parolees are civilly confined and then released to the community. (Id. ¶ 155). The SIST caseload is lighter than the average caseload, with a goal ratio of 10 SIST parolees to one PO, compared to a desired ratio of 25 regular parolees to one PO.⁷ (Id. ¶¶ 156, 158). SIST parolees require more work per parolee because the assigned PO must interact with the Attorney General's Office and the court on a more regular basis. (Id. ¶ 157).

To ensure a balanced distribution of the workload among POs, DOCCS uses a 1.00 goal scale. (Id. ¶ 160). Each type of case is assigned a certain weight—e.g., 1/10 for SIST cases and 1/25 for regular cases—so that a PO's workload is measured by the number of cases weighted according to case type. (Dkt. No. 30-16, at 46-48). As DOCCS Assistant Commissioner for Community Supervision Marco Ricci explained at his deposition:

It's 25 to 1, 10 to 1, and it's broken down. So you take the weight and you say, what is the easiest way to do it? It has to equal 100 at the end of the day, or 1.0.

If you have ten SIST cases, they are each valued at 10 to 1, times ten, is 100. That's 1.0. 25 to l; right? You will have 25 because they are each valued at .25, or whatever it is. So you would have 25 to 1 sex offenders because they are each valued at that. That's the math.

(Id. at 47). But DOCCS cannot control how many parolees are in a given county, how many parolees violate their parole in any given month, or how many finish their...