Sutter v. Dibello
| Decision Date | 10 March 2021 |
| Docket Number | 18-CV-817(SJF)(AKT) |
| Parties | DAWN SUTTER, Plaintiff, v. JOSEPH DIBELLO, Captain, in his official and personal capacities, JOHN POSILLIPO, Captain, in his official and personal capacities, FERN FISHER, in her official and personal capacities, NEW YORK STATE UNIFIED COURT SYSTEM/OFFICE OF COURT ADMINISTRATION, JOHN BROWN, Sergeant, in his official and personal capacities, JOHN DEMARCO, Major, in his official and personal capacities, MICHAEL DEMARCO, Major, in his official and personal capacities, KEITH BROWN, Sergeant, in his official and personal capacities, and GREGORY J. SALERNO, Deputy Director, in his personal capacity, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
I. Introduction
On or about February 6, 2018, plaintiff Dawn Sutter ("plaintiff" or "Sutter") filed an employment discrimination complaint against defendant the New York State Unified Court System/Office of Court Administration ("UCS"); and individual defendants Captain Joseph Dibello ("Dibello"), Captain John Posillipo ("Posillipo"), Fern Fisher ("Fisher"), Major Michael DeMarco ("DeMarco"), incorrectly sued therein as Major John DeMarco, and Sergeant Keith Brown ("Brown"), incorrectly sued therein as Sergeant John Brown (collectively, and together with Deputy Director Gregory J. Salerno, the "individual defendants"), alleging, inter alia, discrimination because of her race, sex and disability and retaliation for her complaints about such conduct. On June 7, 2018, plaintiff filed an amended complaint, inter alia, adding the correct identities for DeMarco and Brown, but failing to remove the misnomers from the caption1. On October 5, 2019, plaintiff filed a second amended complaint ("SAC"), inter alia, adding Deputy Director Gregory J. Salerno ("Salerno"), in his personal capacity only, as a defendant. Pending before the Court is the motion of UCS and the individual defendants (collectively, "defendants") to dismiss the SAC in its entirety as against UCS pursuant to Rule 12(b)(2) and (5) for lack of personal jurisdiction, and to dismiss the SAC in its entirety against the individual defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. For the reasons set forth below, defendants' motion is granted in part and denied in part.
II. BACKGROUND
Plaintiff has been employed as a UCS Court Officer for over eighteen (18) years. (SAC, ¶¶ 4-5).
Dibello and Posillipo are employed by UCS as Captains and "retained supervisory jurisdiction" over plaintiff. (SAC, ¶¶ 8-9). Brown is employed by UCS as a Sergeant, (id., ¶ 12), and DeMarco is employed by UCS as a Major. (Id., ¶ 13).
Fisher was a former Deputy Administrative Judge for New York City Family Court who, upon information and belief, retired in 2017. (SAC, ¶¶ 10-11). Plaintiff alleges that Fisher "authorized the illegal detention and discriminatory acts towards Plaintiff," (id., ¶ 10), as well as the "illegal entry into Plaintiff's home." (Id., ¶ 11).
Salerno is a Deputy Director for UCS, (SAC, ¶ 17), and is the Deputy Director for Court Staffing and Security Services, who has "the executive power to enforce the transfer and staff assignment and reassignment policies of [UCS]." (Id., ¶ 18). "Salerno also has the power to direct and ensure compliance with judicial orders including any order of this court regarding compliance with any order of this court." (Id., ¶ 19).
Plaintiff is an employee with disabilities, but she is able to perform her duties effectively with reasonable accommodation3. (SAC ¶¶ 21-22, 26, 51). Specifically, plaintiff suffers "frequent bilateral cervical pain that radiates into her bilateral upper trapezius muscles . . . [as well as] stiffness and numbness/tingling in this region of her body." (Id., ¶ 23). Plaintiff's "pain is aggravated by prolong [sic] standing and sudden jolts she experiences during her commute to and from work." (Id., ¶¶ 24, 38). In addition, plaintiff "suffers from migraine and lower back pain." (Id., ¶ 25).
"The injuries were reaggravated and her migraine and pain began reoccurring in 2014." (SAC, ¶¶ 30, 47). On July 10, 2015, Dr. Tinari, a chiropractor treating plaintiff, forwarded a report to UCS, Fisher, Salerno and DeMarco indicating that plaintiff "had a compensable injury and is able to work subject to limitations involving no bending, twisting, lifting, climbing ladders or stairs, and no kneeling." (Id., ¶¶ 53-54). Thus, UCS was aware of the "aggravated injuries and reoccurrences" of plaintiff's injury and plaintiff "was temporarily transferred to light duty as a result of the reoccurrence of the injury." (Id., ¶¶ 31-32).
"[D]efendants issued a performance evaluation for [plaintiff] in 2016 that covered [her] performance for the 2015 year," (SAC, ¶ 71), in which UCS "improperly punished [plaintiff] because she was out sick due to her disabilities." (Id., ¶ 72). "In improperly using absences due to workers [sic] compensation and illness against [plaintiff], George Cafasso the Chief Clerk [who is not a party to this action] noted as follows:
Officer Sutter has been on light duty for the entire rating period and has been assigned to clerical duties under the supervision of the Clerk of Court. Officer Sutter's time and leave record is extremely poor. In 2015, Officer Sutter was absent for over 90 days and had 59 unexcused lateness's. Many of these lateness's were for an hour or more. She habitually has no leave balances and is consequently in 'Lost Time' status. Additionally, there were 20 punch missed swipe entries during 2015. Despite formal and informal counseling sessions, there was no improvement in her attendance record during the 2015 calendar year. When Officer Sutter is at work she performs her clerical duties efficiently. Officer Sutter has been made aware of the Work/Life Assistance Program. Officer Sutter's 2015 Kronos record and a performance evaluation appeal forms are attached."
(Id., ¶ 73). Plaintiff received an unsatisfactory rating for 2015, which was based upon "her absence that was due to a compensable injury." (Id., ¶ 74). Although "[t]he time was eventually given back to her," plaintiff claims that "the unsatisfactory rating cost her significant amount ofmonetary loss." (Id., ¶ 74). According to plaintiff, she "was punished for being out sick although the absence was based on documented sick time." (Id., ¶ 75).
Plaintiff "was charged with violation of time and leave policy because she was not able to work as a result of her illness." (SAC, ¶ 55). Plaintiff alleges that those charges "were written at the request and direction of Fisher according to the union," (id.); and "[i]t was unnecessary and retaliatory to subject [plaintiff] to discipline as Defendant fisher [sic] did because she could not come to work as a result of a compensable injury that was well documented in UCS records and personnel office." (Id., ¶ 56). Although plaintiff "protested the charges by explaining to Fisher that her absences were a result of her compensable injury, the defendants ignored [her] protests and chose to continue the prosecution of the charges preferred against her." (Id., ¶ 57).
The charges were preferred against plaintiff on or about January 13, 2016 and were approved by Fisher on or about January 13, 2016. (Id., ¶ 58). According to plaintiff, Fisher "did not care that [plaintiff's] absences were as a result of a compensable injury, she decided to aggressively prosecute her for misconduct by charging her with the violation of not reporting to work at a time when she was out on Workers [sic] Compensation." (Id., ¶ 60). "Although [plaintiff] was alleged in these charges to have engaged in misconduct by not presenting herself to work as scheduled this assertion is false as the absences cited in the charges were related to Sutter's injuries." (Id., ¶ 62).
Plaintiff applied for a transfer to Queens in March 2016 based on her doctor's recommendation and because it would "shorten her commuting time and allow her to travel without using public transportation[,]" which her doctors believe would "avoid the risk of reoccurrence of [plaintiff's] injury." (SAC, ¶¶ 45-47). According to plaintiff, "[t]he March 2016request to transfer was unreasonably denied by Fisher." (Id., ¶ 48). Plaintiff further alleges that "Fisher or the UCS managers did not engage in any action to ascertain the potential opportunities available to Plaintiff for the purpose ADA [sic] reassignment as a reasonable accommodation." (Id., ¶ 49).
Plaintiff also requested a transfer on or about March 15, 2016, which she alleges was "unreasonably and summarily denied at the direction of Fisher."4 (SAC, ¶ 50).
Plaintiff's workers' compensation was based on the injuries that occurred while she was at work in 2010, (SAC, ¶¶ 29, 51), and "[i]n September 2016, Susan Maurer a case manager with NYS Insurance Fund informed U.C.S that Sutter has successful [sic] established a Workers [sic] Compensation case for her neck, back, and left wrist based upon an accident that occurred on August 9, 2010." (Id., ¶ 52).
Thereafter, by letter dated November 3, 2016, Salerno informed plaintiff "that her time previously marked as 'Lost Time' by Defendants are [sic] being restored." (SAC, ¶ 63). According to plaintiff, "[t]he restored time represented a period the Defendants charged [her] with misconduct for not coming to work when that absence was for a compensable injury." (Id., ¶ 64). Plaintiff alleges that "[b]ecause of Defendants [sic] policy of disregarding [her] reasonable accommodation requests, [plaintiff] was subjected to a needless disciplinary hearing procedure that was unnecessary and forced her to accumulate needless legal bills in the defense of the action." (Id., ¶ 66). Plaintiff also alleges that she "lost money, opportunities for promotion, and time as a result of disciplinary suspension imposed on her." (Id., ¶ 70).
In December 2016, plaintiff requested to be reassigned to a...
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