Pulizotto v. McMahon

• Decision Date: 23 August 2019
• Docket Number: 17-cv-9726 (PKC)
• Citation: 406 F.Supp.3d 277
• Parties: Michael J. PULIZOTTO, Plaintiff, v. Judith N. MCMAHON et al., Defendants.
• Court: U.S. District Court — Southern District of New York

406 F.Supp.3d 277

Michael J. PULIZOTTO, Plaintiff,

v.Judith N. MCMAHON et al., Defendants.

17-cv-9726 (PKC)

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

Signed August 23, 2019

Alan Serrins, Serrins & Associates LLC, New York, NY, for Plaintiff.

Richard M. Steigman, Monica Hanna, Lisa M Evans, NY State Office Of Court Administration, Kimberly Eden Carson, Quinn Emanuel Urquhart & Sullivan, LLP, Michael Barry Carlinsky, New York, NY, for Defendants.

OPINION AND ORDER

CASTEL, U.S.D.J.

Michael J. Pulizotto alleges that, while working as Chief Clerk of the New York Supreme Court in Staten Island, he was harassed and threatened for being gay and for reporting evidence of misconduct by various court officials. Pulizotto remains employed by the New York courts but has been transferred to a different location with diminished responsibilities.

He brings this action against Judith N. McMahon, Justice of the New York Supreme Court, Richmond County, George J. Silver, Justice of the Supreme Court, New York County and Deputy Chief Administrative Judge for All Courts Within New York City ("DCAJ"), the New York State Court Officers' Association ("NYSCOA") and several of its members, the Executive Director and Chief of Administration of the New York State Office of Court Administration, and the Chief of Department of Public Safety for the New York State Unified Court System ("NYSUCS"), asserting claims under 42 U.S.C. §§ 1983, 1985, and New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296(1) et seq. The 386 -paragraph Complaint contains many criticisms of the administration of the judicial system in Staten Island during the tenure of defendant McMahon as Administrative Judge; some are material to the claims for relief and others are not.

Defendants McMahon, the NYSCOA, and two court officers and members of NYSCOA, Ted Kantor and Stephen Mikos, now move to dismiss plaintiff's Third Amended Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P. For reasons that will be explained, the motions will be granted in part and denied in part.

BACKGROUND

The following facts are taken from Pulizotto's Third Amended Complaint and exhibits referenced therein and are accepted as true for purposes of the motion. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). Plaintiff alleges two separate types of harassment and threats – those related to his disclosure of McMahon's alleged misconduct, and those related to his self-identification as a gay male.

i. Harassment Related to Pulizotto's Disclosure of Misconduct

McMahon held the position of Administrate Judge for Richmond County making her "the highest-ranking judge in the county with administrative judicial supervisory authority over other judges and justices." (Compl. ¶38.) McMahon's husband became a candidate for District Attorney of Richmond County and as of May 2015, McMahon was under "written and verbal directives" to refrain from exercising authority over criminal matters. (Compl. ¶¶ 4(a), 39-41.) Honorable Justice Stephen Rooney was designated Acting Administrative Judge for criminal matters. (Id. ¶42.)

On July 10, 2015 Pulizotto, during McMahon's tenure as Administrative Judge, was appointed Chief Clerk of the Richmond County Supreme Court. (Id. ¶50.) Almost immediately thereafter, Pulizotto began to note McMahon's involvement in criminal matters. For example, on July 16, Pulizotto discussed criminal procedure issues with Justice Rooney and that same day, McMahon "screamed at and berated" Pulizotto for offering his opinions to Justice Rooney, telling him "You're on probation!" and "We don't send things out-of-county!" (Id. ¶¶51-52.) McMahon continued to work on criminal matters throughout the summer of 2015. (Id. ¶¶53-57; see id. ¶¶67-68.)

On September 4, 2015, Pulizotto met with the Executive Director of the NYSUCS, Ronald P. Younkins. (Id. ¶84.) At that meeting Pulizotto reported McMahon's interference in criminal matters and other alleged misconduct, including threats made against him for speaking to the Inspector General of the NYSUCS ("IG") regarding a possible investigation into a workplace harassment complaint of another employee. (Id.)¹

On November 30, 2015, Pulizotto met with Dennis W. Quirk, President of the NYSCOA (Id. ¶¶5, 94.)² At that meeting, Quirk told Pulizotto he was "halfway out the door" regarding his employment, that he should "shut up and do as [he] is told," that McMahon "knew [he was] coming here," and he asked Pulizotto "Who are you to say that [Justice McMahon] should leave Richmond County for ethical reasons?" (Id. ¶95.) At the meeting Quirk "falsely asserted that Pulizotto was seeking sexual favors from male officers in the locker room" and told him there were rumors he was involved with another male court officer. (Id. ¶96.) After that meeting on the same day, McMahon allegedly called Pulizotto to her office, "rolled her eyes," and asked him "Do you understand?" (Id. ¶98.)

Justice McMahon's work on criminal matters continued through December 2015 and January 2016. For example, she directed Pulizotto not to implement a bail reform program (id. ¶¶99, 101), discussed budgetary priorities for the criminal term with the budget office (id. ¶¶102-03), told Pulizotto she would handle a media request related to a criminal matter, (id. ¶¶105-07) and acted with respect to a request by the Richmond County District Attorney's office to keep a courthouse open after hours, (id. ¶¶108-11; see id. ¶113.) Throughout the summer of 2016 and spring of 2017 Pulizotto recorded further instances of McMahon getting involved in, attempting to get involved in, or expressing interest in criminal matters. (E.g., id. ¶¶130-31, 134-36, 139, 142, 150, 153-54, 157, 160-61, 177-78.) These included forming a Narcotics Part of the Criminal Court, choosing which justice to assign as presiding judge of the Narcotics Part, diverting staffing and security to the hand-picked presiding justice, and coordinating with her husband to have cases sent to the hand-picked justice. (Id. ¶¶162-66.) Throughout the spring and early summer of 2017 Pulizotto alleges McMahon engaged in similar conduct and additional conduct on non-criminal matters that raised questions as to her impartiality and fitness as a judicial officer. (Id. ¶¶185-92; 199-200.)

Pulizotto also details other instances where McMahon attempted to suppress investigations into alleged courthouse misconduct. In February 2016, a court officer identified as SV complained to Pulizotto about race and gender discrimination by her supervisor. (Id. ¶117.) Pulizotto informed McMahon, who directed Pulizotto to wait before taking any action on the discrimination complaint until another judge was reappointed to her position, an event that would not occur for approximately twelve months. (Id. ¶¶120-21.) In July 2016, SV also reiterated that she was called a racist name at a holiday party in December 2013 by one of the girlfriends of a court employee, Steven Panella. (Id. ¶141.) That incident was never investigated. (Id. ¶¶64-65.)

In March 2017 Pulizotto submitted a report complaining of McMahon's conduct to the DCAJ,³ the United States Attorney for the Southern District of New York, and the IG. (Id. ¶¶179-80.) Pulizotto provided audio recordings of alleged misconduct to the IG. (Id. ¶183.) At some point McMahon received a copy of the report. (Id. ¶181.) Pulizotto reported further allegations of McMahon's misconduct related to interference in criminal matters to the IG in August 2017. (Id. ¶207.) McMahon met with the IG regarding these allegations on August 7, 2017 and told Pulizotto that she "did nothing wrong and would be vindicated." (Id. ¶210; Doc 14 (First Am. Compl.) Ex. 2.) On August 18, Justice Silver and others called Pulizotto and told him to report any retaliatory actions he experienced. (Id. ¶213.) Pulizotto believes the calls were made because the IG disclosed to McMahon his identity as a whistleblower (Id. ¶216.)

At the end of August 2017, Pulizotto reported to the DCAJ allegations that Quirk berated and harassed Pulizotto for decisions related to court officer staffing (Id. ¶220; Doc 14 Ex. 3.)

On September 5, 2017, Pulizotto arrived at the courthouse to find a "mob" consisting of Quirk, Mikos, Kantor, and other court officers (Id. ¶230.) The officers "other than Quirk, Mikos and Kantor" were "in uniform and on-duty." (Id.) The group "curse[d] at and threaten[ed]" Pulizotto, including making threats to harass his father at his father's nursing home and revoke Pulizotto's membership in the Fraternal Order of Police. (Id. ¶231.) Quirk was "telling everyone who passes by" that Pulizotto was a "rat who went to the IG and had people on tape," (Doc 14 Exs. 4, 5; see Compl. ¶233-34), and "loudly and publicly screamed" at another court officer walking into the building a homophobic remark that referenced the officer performing sexual acts on Pulizotto. (Id. ¶232.)

That same day, McMahon called an emergency judges meeting at the courthouse during which she "[a]nnounced the allegations against her," accused Pulizotto of recording members of the court, stated she would be vindicated, and solicited and received a vote of "no confidence" in Pulizotto. (Id. ¶239.)

On September 7, Quirk "blockad[ed]" the entrance to the courthouse driveway, "screamed and cursed at" Pulizotto, and "publicly threatened" to come to his house. (Id. ¶¶255-57, 260; Doc 14 Ex. 7.) Quirk, Mikos, and Kantor inflated a giant rat bearing Pulizotto's name in the courthouse driveway and made statements to the media while displaying the rat. (Compl. ¶¶259, 263(d).)

The afternoon of September 7 Pulizotto was informed by Younkins that he was being transferred out of Richmond County and Younkins referenced the judges' "no confidence" vote. (Id. ¶269.) Pulizotto was transferred to a different office effective September 11, 2017 where he was assigned no supervisory duties. (Id. ¶¶273, 275.)

ii. Harassment Related to Pulizotto's Sexual Orientation

Pulizotto alleges various...