Sutter v. Dibello
| Decision Date | 12 August 2019 |
| Docket Number | CV 18-817 (ADS) (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; JOHN DEMARCO, MAJOR, in his official and personal capacities; NEW YORK STATE UNIFIED COURT SYSTEM, OFFICE OF COURT ADMINISTRATION; JOHN BROWN, SERGEANT, in his official and personal capacities; MICHAEL DEMARCO, MAJOR, in his official and personal capacities; and KEITH BROWN, in his official and personal capacities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
I. PRELIMINARY STATEMENT
Plaintiff Dawn Sutter ("Plaintiff") commenced this action against her employer, the New York State Unified Court System ("UCS"), and five1 of her supervisors and managers, asserting multiple causes of action, including claims of sex, race, and disability discrimination. See generally Plaintiff's Amended Complaint ("Am. Compl.") [DE 12]. Plaintiff alleges that as a white female Court Officer, she experienced harassment, discrimination, and retaliation at thehands of Defendants UCS Captain Joseph Dibello ("Dibello"), UCS Sergeant Keith Brown ("Brown"), UCS Captain John Posillipo ("Posillipo"), UCS Major Michael Demarco ("Demarco"), and Deputy Administrative Judge Fern Fisher ("Fisher") (collectively, "Defendants" or "Individual Defendants") because of her race and gender. See id. Plaintiff also claims she was mistreated because she applied for a reasonable accommodation based on a disability from which she suffers. See id. The Amended Complaint purports to assert the following nine causes of action:2 (1) denial of equal protection in violation of the New York State Constitution, id. ¶¶ 141-45; (2) race, sex, and disability discrimination, hostile work environment, and retaliation in violation of the New York State Human State Rights Law ("NYSHRL"), id. ¶¶ 146-49; (3) race, sex, and disability discrimination, hostile work environment, and retaliation in violation of the New York City Human Rights Law ("NYCHRL"), id. ¶¶ 150-53; (4) violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, id. ¶¶ 154-56; (5) violation of 42 U.S.C. § 1981, id. ¶¶ 157-61; (6) violation of Plaintiff's federal rights under 42 U.S.C. § 1983, id. ¶¶ 162-64; (7) false imprisonment and warrantless entry into Plaintiff's home, id. ¶¶ 165-69; (8) assault, id. ¶¶ 170-72; and (9) race, sex, and disability discrimination, hostile work environment, and retaliation in violation Title VII of the Civil Rights Act ("Title VII"), the Americans with Disabilities Act ("ADA"), and the Family and Medical Leave Act ("FMLA"). Id. ¶¶ 173-76.
The Individual Defendants have moved to dismiss Plaintiff's Amended Complaint. Specifically, Defendants Dibello, Brown, Posillipo, and Demarco filed a joint motion, see generally Memorandum in Support of Dibello, Brown, Posillipo, and Demarco's Motion toDismiss the Amended Complaint (" ") [DE 17], while Defendant Fisher filed a separate motion. See generally Memorandum in Support of Fisher's Motion to Dismiss the Amended Complaint ("Fisher Mem.") [DE 25]; see also Defendants' Joint Memorandum in Reply ( ) [DE 31]. Plaintiff opposes both motions to dismiss. See generally Plaintiff's Memorandum in Opposition ("Pl.'s Opp'n.") [DE 28]. Judge Spatt has referred both motions to this Court for a Report and Recommendation as to whether the motions should be granted. See DE 45. For the reasons set forth below, this Court respectfully recommends to Judge Spatt that the Defendants' motions to dismiss the Amended Complaint be GRANTED, in part, and DENIED, in part.
II. BACKGROUND
The following factual allegations have been taken from Plaintiff's Amended Complaint. All facts alleged by the Plaintiff are assumed to be true for purposes of deciding the motion to dismiss and are construed in a light most favorable to Plaintiff as the non-moving party. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009); Matthews v. City of N.Y., 889 F. Supp. 2d 418, 425 (E.D.N.Y. 2012).
Plaintiff has been employed by UCS as a Court Officer for over 18 years. Am. Compl. ¶¶ 4-5. The Amended Complaint states that Plaintiff is an employee with disabilities, that Defendants are aware of those disabilities, and that Plaintiff is able to perform her duties effectively with reasonable accommodation. Id. ¶¶ 18-19. In 2010, Plaintiff suffered an injury while at work and as a result has suffered frequent bilateral cervical pain that radiates into her bilateral upper trapezius muscles. Id. ¶ 20; see id. ¶ 26. She also suffers from migraines. Id. ¶ 22. Her pain is aggravated by prolonged standing which makes her daily commute to and fromwork difficult. Id. ¶ 21. In 2014, Plaintiff's injuries "were reaggravated and her migraine and pain began reoccurring." Id. ¶ 27. As a result of this reoccurrence, Plaintiff was transferred to "light duty." Id. ¶ 29.
On July 10, 2015, Plaintiff's chiropractor, Dr. Tinari, informed UCS that Plaintiff "had a compensable injury" and was able to work subject to limitations, such as no bending, twisting, lifting, climbing ladders or stairs, or kneeling. Am. Compl. ¶ 59. Dr. Tinari's July 10, 2015 report was forwarded to Defendants Dibello, Posillipo, Demarco, and Brown on the same date. Id. ¶ 60.
On or about January 13, 2016, Plaintiff was charged with violations of the UCS time and leave policy for absences which, Plaintiff asserts, were the result of her injury and resulting disability. Am. Compl. ¶¶ 61, 64. Those charges were approved by Defendant Fisher. Id. ¶¶ 64. Plaintiff avers that the Defendants were aware that her absences were due to her injury. Id. ¶ 65.
Based on her doctor's recommendation, in March 2016 Plaintiff applied for a transfer from the courthouse in Brooklyn to a courthouse in Queens County. Am. Compl. ¶¶ 52, 107. According to the Amended Complaint, that transfer would have shortened Plaintiff's commuting time and allowed her to travel without using public transportation. Id. ¶ 53. That request was denied. Id. ¶ 55.
In September 2016, Susan Maurer, a case manager with the New York State Insurance Fund, informed UCS that Plaintiff had successfully established a Workers Compensation claim for her neck, back, and left wrist stemming from the 2010 incident. Am. Compl. ¶ 58. Plaintiff claims that around this time, she "was subjected to a needless disciplinary hearing procedure that was unnecessary and forc[ed] [Plaintiff] to accumulate needless legal bills in the defense of the action." Id. ¶ 74. This disciplinary matter was eventually settled, and by letter dated November3, 2016, Gregory Salerno, the Deputy Director for Court Officer Staffing and Security Services, informed Plaintiff that time which had previously been marked as "Lost Time" was being restored.3 Id. ¶¶ 71, 80. However, Plaintiff claims that in her employment evaluations for the year 2015, she was given "unsatisfactory" ratings due to her absences despite the fact that these absences were the result of her 2010 injury. Id. ¶¶ 82-85. She avers that this "unsatisfactory rating cost her [a] significant amount of monetary loss." Id. ¶ 85.
In December 2016, Plaintiff requested to be reassigned from Brooklyn to a court in Nassau, Suffolk, or Queens County, in order to reduce her commuting time. Am. Compl. ¶ 35. In a letter dated December 22, 2016, UCS responded to her request by stating that reassignments were discretionary and usually occurred with the graduation of a new recruit class. Id. ¶ 37. UCS also stated that Plaintiff's request was being provided to executive court managers in Queens, Nassau, and Suffolk Counties for their review and consideration in the event an opportunity arose. Id. Notwithstanding the fact that "there have been several opportunities to effect the transfer" since 2016 and that she "has seniority," Plaintiff has still not been transferred. Id. ¶ 38.
Also on December 22, 2016, Defendants Dibello, Posillipo, Demarco, and Brown "chose to refer Plaintiff's case to the Deputy Chief Administrative Judge for NYC Court [Fern Fisher] for review as to [Plaintiff's] fitness for duty." Am. Compl. ¶¶ 39, 42-43. Plaintiff alleges that there was no basis for this referral, and UCS "as a matter of official policy refers employees to fitness [for] duty examination[s] of this nature that are unnecessary and inconsistent with [the]ADA and FMLA." Id. ¶¶ 41, 44; see id. ¶¶ 46-49. Plaintiff contends that this "policy" is intended to discourage court officers from applying for reasonable accommodations and that the policy is solely applied to uniformed court officers. Id. ¶¶ 50-51.
Plaintiff requested leave under the FMLA on February 9, 2017 to cover intermittent use of sick time between February 2017 and December 31, 2017. Am. Compl. ¶ 31. Plaintiff states she made this request based on her worsening physical condition: during her commute to and from work, she began suffering from photophobia, migraines, smell sensitivity, nausea, and vomiting. Id. ¶ 33. Plaintiff was granted only one month of leave and was told in a letter that she would need to reapply after the month was over to extend her FMLA leave. Id. ¶¶ 31-32.
On February 28, 2017, Plaintiff was asked by Defendant Dibello to follow him into his office. Am. Compl. ¶¶ 86, 95. Once inside, Dibello demanded Plaintiff's firearms, one of which she delivered to Dibello by placing it on his desk. Id. ¶¶ 87-88. Plaintiff was subsequently directed to Defendant Posillipo's office. Id. ¶ 89. There, Plaintiff claims she "was locked up in a room with Captain Posillipo and Dibello and subjected to a wide range of questions about her firearms." Id. ¶ 90. "She was told she was not free to leave and [was] shown a copy of a correspondence with [Defendant] Fisher stating that...
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