Rother v. Nys Dep't of Corr.

• Decision Date: 04 September 2013
• Docket Number: No. 1:12–CV–0397 (LEK/CFH).,1:12–CV–0397 (LEK/CFH).
• Citation: 970 F.Supp.2d 78
• Parties: Sgt. Marie ROTHER, Plaintiff, v. The NYS DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; Brian Fischer, Commissioner of NYS Department of Corrections and Community Supervision; Greene Correctional Facility; Coxsackie Correctional Facility; David Morse (in both his official and individual capacity); James Weeks (in both his official and individual capacity); John Doe; and Richard Roe (as unknown individual defendants in both their official and individual capacities), Defendants.
• Court: U.S. District Court — Northern District of New York

970 F.Supp.2d 78

Sgt. Marie ROTHER, Plaintiff,

v.The NYS DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; Brian Fischer, Commissioner of NYS Department of Corrections and Community Supervision; Greene Correctional Facility; Coxsackie Correctional Facility; David Morse (in both his official and individual capacity); James Weeks (in both his official and individual capacity); John Doe; and Richard Roe (as unknown individual defendants in both their official and individual capacities), Defendants.

No. 1:12–CV–0397 (LEK/CFH).

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

Sept. 4, 2013.

Karen L. Kimball, Office of Karen L. Kimball, Wynantskill, NY, for Plaintiff.

Gregory J. Rodriguez, Office of Attorney General, Albany, NY, for Defendants.

MEMORANDUM–DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

I. INTRODUCTION

In this employment action, Plaintiff, Sergeant Marie Rother (“Plaintiff”), brings a number of claims arising out of her treatment by supervisors and co-workers while she was employed by Defendant the NYS Department of Corrections and Community Supervision (“DOCCS”). See generally Dkt. No. 23 (“Amended Complaint”). Presently before the Court is Defendants' Motion to dismiss. Dkt. No. 25 (“Motion”). For the reasons that follow, the Motion is granted in part and denied in part.

II. BACKGROUND¹

Plaintiff began working as a DOCCS corrections officer in 1998. Am. Compl. ¶ 6. She was promoted to sergeant in 2009 and was subsequently transferred to Defendant Coxsackie Correctional Facility (“Coxsackie”) in March 2010. Id. ¶ 18.

A. Treatment at Coxsackie

At Coxsackie, Plaintiff was one of only two female sergeants. Id. ¶¶ 36, 39. Plaintiff was passed over in favor of male employees for overtime assignments for which she was qualified. Id. ¶ 51. She was denied training in an area of expertise, and was temporarily denied mandatory sexual harassment training. Id. ¶¶ 52–54, 110–1. Plaintiff was entitled by virtue of her “seniority, training, and experience” to vacant single-shift job assignments but was instead assigned to work at various times. Id. ¶¶ 55–56, 61. She was also forced to wait to be assigned to an open administrative-sergeant position.²Id. ¶ 61.

Defendant Lieutenant James Weeks (“Weeks”) disciplined Plaintiff for her conduct relating to a nurse's administration of medicine to an inmate,³ as well as Plaintiff's “inappropriate shower shoes, inappropriate response to an inmate's bad behavior and inappropriate preparation of a disciplinary meal for an inmate.” Id. ¶¶ 145–48, 150–67. Weeks informally “counseled” Plaintiff for these incidents and formally “counseled” Plaintiff twice for the medication incident. Id. ¶¶ 150–51, 155, 176. The first formal counseling violated “protocol” in that there was no list of charges prepared. Id. ¶ 160. Both formal counselings violated “union rules” prohibiting multiple counselings for a single incident.⁴Id. ¶ 178. Documentation of the formal counseling was to remain in Plaintiff's personnel file for three years. Id. ¶ 182. Plaintiff was also unfairly chastised by a supervisor for leaving a document with a supervisor's secretary rather than giving it to the supervisor himself. Id. ¶¶ 143–44. Plaintiff alleges that all of the conduct for which she was disciplined or chastised was proper.

Plaintiff points to three incidents of harassing and injurious personal treatment at Coxsackie. In early January 2011, Defendant David Morse (“Morse”),⁵ a Coxsackie and DOCCS employee,⁶ told Plaintiff—in front of inmates, her co-workers, and her subordinates—that she had received her administrative-sergeant position by performing sexual favors and that she was a “bitch and a backstabber,” “a stupid cunt,” and a “whining bitch” who “sucked.” Id. ¶¶ 63, 65–66.

Approximately two weeks later, Plaintiff discovered that her chair had been removed and replaced with a chair intended for inmates, and that her computer and phone were no longer working. Id. ¶¶ 90–107. The loss of Plaintiff's phone prevented her from using the emergency response system had she needed to do so. Id. ¶¶ 103–06. She later found her chair “in pieces hidden behind large boxes.” Id. ¶¶ 92–95.

In early March 2011, Weeks formally counseled Plaintiff in a small, airless inmate hearing room, even though such rooms were not used to counsel other DOCCS employees.⁷Id. ¶¶ 154–74. Weeks spent half an hour quietly thumbing through the employee manual, which intimidated Plaintiff, as did the unprecedented use of an inmate hearing room. Id. ¶¶ 159, 161–63. Although Weeks told Plaintiff that she did not need a union representative at the meeting, she was permitted to request one. Id. ¶¶ 164–65.

Plaintiff suffered severe physical and psychological reactions as a result of the Morse incident and Weeks's formal counseling. She suffered from “elevated blood pressure, shaking and nausea” after Morse's tirade. Id. ¶ 74 This incident made Plaintiff feel unsafe because her “credibility, authority and professionalism had been damaged in a significant way.” Id. ¶ 78. Plaintiff passed out and was taken to the hospital after she left the inmate hearing room where Weeks was formally counseling her; she was diagnosed with anxiety, panic attacks, and stress.⁸Id. ¶¶ 168–75.⁹

Plaintiff repeatedly complained, both verbally and in writing, about this putatively discriminatory treatment. She complained to Weeks, Lieutenant Kenneth Baldwin (“Baldwin”), an “EAP” officer, Deputy Security Superintendent Christopher Miller (“Miller”), and the Department of Diversity Management about Morse's tirade. Id. ¶¶ 70, 73, 79, 80, 82, 124–27. She complained about the destruction of her chair to “Lieutenant Humphrey” (“Humphrey”) and Miller. Id. ¶¶ 98–101. Everyone to whom she complained was dismissive and took no remedial action even though video recordings of the Morse and chair incidents were available. See generally Am. Compl. Morse was not disciplined for his conduct. Id. ¶ 142. Plaintiff alleges that, as a result of her complaints about Morse, she was shunned by her co-workers and advised to check the tires of her vehicle because “rats” had their tires slashed. Id. ¶¶ 109–10. She also complained about this shunning but no remedial action was taken. Id. ¶¶ 139.

B. Treatment at Greene

Plaintiff then transferred to Defendant Greene Correctional Facility (“Greene”) (collectively with DOCCS and Coxsackie, the “Employer Defendants”) on March 14, 2011. Id. ¶ 184. Plaintiff was denied a position to which she was entitled by job seniority and was instead assigned to the most difficult cell block, an assignment she could have declined but chose to accept to show that she was a “team player.” Id. ¶¶ 185–86. Her performance was regularly scrutinized on video monitors and tapes that were generally reviewed only after an incident and were not used to regularly scrutinize male employees. Id. ¶¶ 191–203. Supervisors met with Plaintiff on multiple occasions to criticize her performance. Id. ¶¶ 192–94. She was formally counseled for her conduct in keeping a cell block “under control,” even though Plaintiff argued that her “solution was the safer solution.” Id. ¶¶ 200, 205.

On April 6, 2011, Plaintiff was told by another sergeant that she would be disciplined for an incident that had happened on his shift, when Plaintiff was not working. Id. ¶¶ 210–11. Plaintiff had a severe physiological reaction to this news, including hyper-ventilation, nausea, sweating, high blood-pressure, and a migraine. Id. ¶¶ 213–20. She was taken to the hospital. Id.

C. Treatment Pre–Retirement

The following day, Plaintiff was told by her doctor that she should not work for two weeks. Id. ¶ 221. She gave Greene paperwork needed to obtain workers' compensation payments for the two-week period, but “Lieutenant Mahoney” refused to fill it out for four months because he believed Plaintiff's injury was not work related. Id. ¶¶ 224–30. Plaintiff also received a letter from Defendants in late July 2011 demanding that she “immediately return to work or be considered AWOL” even though she was on approved medical leave. Id. ¶¶ 231–32.¹⁰

Defendants falsely claimed that Plaintiff did not have sick or vacation time and thus did not pay her while she was on leave. Id. ¶ 234. Defendants also falsely claimed that Plaintiff was AWOL and on “probationary status,” which, in combination with the failure to complete the workers' compensation paperwork, rendered her “essentially” ineligible for a facility transfer that she likely would have received had she been eligible. Id. ¶¶ 235–36.

In May 2011, Plaintiff filed a discrimination complaint with the New York State Division of Human Rights (“DHR”),¹¹ which commenced an investigation. Id. ¶¶ 9, 237. Defendants did not provide DHR with relevant videos or documentation, and falsely told DHR that Plaintiff had been on probation when she stopped working. Id. ¶¶ 238–40. Morse falsely described his tirade and claimed that Plaintiff had lost her temper and behaved unprofessionally. Id. ¶¶ 248–49. Weeks truthfully but misleadingly claimed that Plaintiff had not filed a written complaint with him; Plaintiff had instead followed established procedure by filing a complaint with Baldwin. Id. ¶¶ 246–47.

Greene has also failed to return personal items left by Plaintiff. Id. ¶ 250. On September 2, 2011, Plaintiff retired. Id. ¶ 263. She is currently receiving disability benefits from both the Social Security Administration and the New York State Retirement System. Id. ¶¶ 266–67.

D. Procedural History

Plaintiff filed a Complaint with the Court on March 2, 2012. Dkt. No. 1 (“Original Complaint”). Defendants subsequently filed a Motion to dismiss and accompanying Memorandum of law. Dkt. Nos. 14 (“Original Motion”); 14–1 (“OriginalMemorandum”). Plaintiff then moved to amend the Original Complaint, and Defendants agreed to withdraw the Original Motion if the Court permitted Plaintiff to amend. Dkt. Nos. 18, 21. The Court permitted Plaintiff to do so, and Plaintiff then filed the...