Percy v. New York
| Decision Date | 07 September 2017 |
| Docket Number | No. 16–cv–5304 (NSR),16–cv–5304 (NSR) |
| Parties | Violene PERCY, Plaintiff, v. The State of NEW YORK (HUDSON VALLEY DDSO), Local 412 of the CSEA, Inc., Local 1000, AFSCME AFL–CIO, and Basil Townsend, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Barry David Haberman, New City, NY, for Plaintiff.
Steven Gabriel Morris, New York State Office of the Attorney General, New York, NY, Leslie Catherine Perrin, Civil Service Employees Association, Inc., Albany, NY, Patrick S. Tittle, Patrick S. Tittle, PC, Wappingers Falls, NY, for Defendants.
Plaintiff Violene Percy ("Percy") brings this action against Defendants State of New York–Hudson Valley DDSO ("HVDDSO"), Local 412 of the CSEA, Inc. ("CSEA"),1 and Basil Townsend ("Townsend") (collectively, "Defendants"), alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq. , and New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law §§ 290 et seq. Before this court are Defendants' motions to dismiss. For the foregoing reasons, CSEA's and Townsend's motions are GRANTED in part and DENIED in part, and HVDDSO's motion is GRANTED.
The following facts are derived from Plaintiff's Complaint, (ECF No. 1), unless otherwise noted.
On August 7, 2003, Plaintiff was hired by HVDDSO as an Assistant Development Aid. (Compl. ¶ 8.) Plaintiff was later promoted to the position of House Manager. (Id. ) While employed by the Hudson Valley Developmental Disabilities State Office ("HVDDSO"), at an unspecified time, Plaintiff was hired by CSEA as a "delegate," and in that capacity, she attended conventions and meetings on behalf of CSEA. (Id. ¶ 9.) CSEA paid for Plaintiff to engage in these activities, including by reimbursing her for travel and expenses. (Id. ) Plaintiff worked for both HVDDSO and CSEA until she suffered "a constructive termination" on September 11, 2014 as a result of "[Defendants'] retaliatory acts." (Id. ¶ 10.)
In January 2014, Plaintiff began to experience a "series of acts of sexual harassment" perpetrated by Defendant Townsend, who served as her Supervisor at both HVDDSO and CSEA. (Id. ¶ 12.) Specifically, Townsend began to "hit on" Plaintiff, suggesting to Plaintiff that she and Townsend should "sleep together." (Id. ¶ 12.) During this same time, in or around January 2014, while Plaintiff was working an incident (the "Incident") occurred involving a client served by HVDDSO. (Id. ¶ 13.) As part of HVDDSO's investigation of the Incident, a series of meetings took place. (Id. ) Plaintiff states that Townsend continued to sexually harass Plaintiff "through and in relation to this investigation, ... [by] refus[ing] to represent the Plaintiff [on behalf of CSEA] at several meetings related to the incident despite having represented other individuals involved in the same incident." (Id. ) Plaintiff contends that because Townsend did not represent her himself, she was treated differently than the other individuals involved in the Incident in retaliation for declining his sexual advances. (Id. at ¶ 14.)
In April 2014, Plaintiff was in the coffee room at the CSEA office when Townsend entered. (Id. at ¶ 15.) When a secretary left the room, leaving Plaintiff and Townsend alone, he began making inappropriate comments and gestures to Plaintiff, including that they could "satisfy each other ... making kisses gestures toward ... Plaintiff... putting his tongue out and quickly moving it up and down, and side to side. (Id. ) This behavior continued although Plaintiff told Townsend to stop. (Id. )
On May 5, 2014, Plaintiff asserts that a secretary of CSEA told Plaintiff to call Townsend. (Id. at ¶ 16.) Plaintiff called Townsend, and he told her he "wanted to do her, that he [could] satisfy her, that he [had] the tool to make her scream, and he wanted to know how big her private ...was." (Id. ) Plaintiff alleges that she told Townsend to stop on this occasion as well. (Id. ) Later that month, on May 27, 2014, Plaintiff, Townsend and other CSEA members were on an Amtrak train returning from a convention in Atlanta. (Id. at ¶ 17.) Townsend told a person that was next to Plaintiff to switch seats with him so he could sit next to Plaintiff. (Id. ) Townsend sat next to her and began asking her "why she was in love with a white man, telling her that she should be with a black man only, and that because she is from an island she should be with an island guy like himself," and that he "knew how to take care of her (sexually)." (Id. ) Plaintiff told Townsend to stop, that nothing would transpire between them, and changed seats. (Id. )
After the May 27, 2014 incident on the train, Townsend continued to make sexual comments toward Plaintiff, "inappropriately placed his hands on her back, made comments regarding her job, and eventually pressured ... Plaintiff to resign as a delegate of CSEA because she would not accept his sexual advances." (Id. at ¶ 18) (emphasis added).
Plaintiff asserts that at all times relevant to the Complaint, Defendants were aware of the of the sexual harassment that Plaintiff suffered at the hands of Townsend, but took no action to ensure the harassment would stop. (Id. at ¶ 19.)2 Presumably as to her employment at HVDDSO, Plaintiff asserts that on June 26, 2014, she was placed on an administrative leave (id. at ¶ 21), and suspended on July 10, 2014 (id. at ¶ 22).
On or about September 2014, Plaintiff alleges she was "forced by CSEA and Townsend to either resign and ... [retain] her retirement option, or stay ... and dispute ... [the] charges" that had apparently arisen against her in relation to the Incident. (Id. at ¶ 23) (emphasis added). Plaintiff asserts that Defendants Townsend and CSEA threatened Plaintiff with arrest and criminal charges relating to the Incident if she chose to dispute them rather than resigning (id. ), although other employees involved in the same Incident were represented by CSEA and Townsend without being pressured to resign, or threatened with arrest or criminal charges. (Id. ) Plaintiff also alleges that Townsend and Pamela Alexander, another CSEA employee that routinely represented employees during employment disputes on behalf of CSEA, told Plaintiff they would not file a petition on her behalf or represent her in connection with the Incident. (Id. ) Subsequently, on September 11, 2014, Plaintiff alleges she suffered a "constructive termination" because she was forced to resign from HVDDSO in retaliation for reporting the sexual harassment, refusing Townsend's advances, and because CSEA failed to provide equal representation to her in connection with the aforementioned Incident. (Id. at ¶ 24.)
Plaintiff concludes her allegations by cursorily asserting that HVDDSO "constructive[ly] terminat[ed]" her "based upon discriminatory factors including sexual harassment." (Id. at ¶ 25.)3
Finally, according to the Complaint, throughout Plaintiff's employment with both HVDDSO and CSEA, she received "excellent evaluations," (id. at ¶ 11), and at all relevant times she performed her duties in a satisfactory manner (id. at ¶ 20).
Under Rule 12(b)(6), the inquiry is whether the complaint "contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); accord Hayden v. Paterson , 594 F.3d 150, 160 (2d Cir. 2010). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679, 129 S.Ct. 1937. To survive a motion to dismiss, a complaint must supply "factual allegations sufficient ‘to raise a right to relief above the speculative level.’ " ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is " ‘not bound to accept as true a legal conclusion couched as a factual allegation,’ " or to credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). In determining whether a complaint states a plausible claim for relief, a district court must consider the context and "draw on its judicial experience and common sense." Id. at 662, 129 S.Ct. 1937. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937.
As to a motion brought under Rule 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction under 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 well-settled that the "plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure , 290 F.3d 493, 497 (2d Cir. 2002) ). In reviewing a Rule 12(b)(1) motion to dismiss, the court "must accept as true all material factual allegations in the complaint, but [the court is] not to draw inferences from the complaint favorable to plaintiff." J.S. ex rel. N.S. v. Attica Cent. Sch. , 386 F.3d 107, 110 (2d Cir. 2004). The court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits."
Plaintiff alleges that she was discriminated against when Defendant Townsend sexually...
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