Summary
holding that the failure to remedy discriminatory conduct by others is insufficient to constitute personal involvement following Tangreti
Summary of this case from Kirkland-Hudson v. Mount Vernon City Sch. Dist.Opinion
5:21-CV-651
08-20-2021
KAMILLA S. PECK, Plaintiff, v. COUNTY OF ONONDAGA, NEW YORK; EUGENE CONWAY, Onondaga County Sheriff; JASON CASSALIA, Undersheriff; KATHERINE TRASK, Chief; JONATHAN SEEBER, Sergeant; KELLY SEEBER, Deputy; SUSAN DeMARI, Chief Deputy; DAWN CURRY-CLARRY, Director of Employee Relations; PAUL SMITH, Human Resources Manager; PAULA PELLIZZARI, Captain; ESTEBAN GONZALEZ, Chief, JOHN DOES, and JANE DOES, all in their individual and official capacities as representatives of Onondaga County and/or the Onondaga County Sheriff's Office, Defendants.
BOSMAN LAW FIRM, LLC AJ BOSMAN, ESQ. ROBERT JAMES STRUM, ESQ. Attorneys for Plaintiff BOLAÑOS LOWE PLLC KYLE W. STURGESS, ESQ. Attorneys for Defendants
BOSMAN LAW FIRM, LLC AJ BOSMAN, ESQ. ROBERT JAMES STRUM, ESQ. Attorneys for Plaintiff
BOLAÑOS LOWE PLLC KYLE W. STURGESS, ESQ. Attorneys for Defendants
MEMORANDUM-DECISION AND ORDER
DAVID N. HURD UNITED STATES DISTRICT JUDGE
TABLE OF CONTENTS
I. INTRODUCTION……………………………………………………………………4
II. BACKGROUND…………………………………………………………………….5
III. LEGAL STANDARD…………………………………………………………….16
A. Motion to Dismiss……………………………………………………………….16
B. Leave to Amend…………………………………………………………………17
IV. DISCUSSION ……………………………………………………………………..18
A. Section 1981…………………………………………………………………….. 19
B. Adequacy of Allegations of Discrimination………………………………… 20
1. Religious Discrimination……………………………………………………. 23
2. Gender Discrimination……………………………………………………….24
3. Personal Involvement: Section 1983………………………………………. 26
a. Conway…………………………………………………………………… 28
b. Cassalia…………………………………………………………………...30
c. DeMari…………………………………………………………………… 31
d. Curry-Clarry…………………………………………………………….. 32
e. Smith……………………………………………………………………... 33
f. Pellizzari…………………………………………………………………… 34
g. Gonzalez…………………………………………………………………..35
4. Personal Involvement: NYSHRL…………………………………………...36
C. Conspiracy………………………………………………………………………. 41
D. First Amendment Retaliation…………………………………………………
E. Intentional Infliction of Emotional Distress……………………………….. 47
F. Tortious Interference…………………………………………………………... 49
G. Prima Facie Tort……………………………………………………………….. 51
H. Leave to Amend and Time to Answer………………………………………. 52
V. CONCLUSION……………………………………………………………… .......52
L INTRODUCTION
On May 13, 2021, plaintiff Kamilla Peck (“Peck” or “plaintiff) filed this action in Supreme Court, Onondaga County alleging race, gender, and religious discrimination in her workplace, the Onondaga County Sheriffs Office (the “Sheriffs Office”).
Peck's state court complaint identified a host of defendants, including Onondaga County itself (the “County”), Sheriff Eugene Conway (“Conway”), undersheriff Jason Cassalia (“Cassalia”), Chief Katherine Trask (“Trask”), Sergeant Jonathan Seeber (“Jonathan”), Deputy Kelly Seeber (“Kelly”), Chief Deputy Susan DeMari (“DeMari”), Director of Employee Relations Dawn Curry-Clarry (“Curry-Clarry”), Human Resources Manager Paul Smith (“Smith”), Captain Paula Pellizzari (“Pellizzari”), Chief Esteban Gonzalez (“Gonzalez”), as well as an unspecified number of John and Jane Doe defendants (the “Does”) (collectively “defendants”).
On June 3, 2021, defendants removed Peck's complaint to federal court. Thereafter, defendants moved under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) to dismiss the complaint in part. Plaintiff opposed and cross-moved to amend her complaint under Rule 15(a)(2). The cross-motions have been fully briefed and will be decided on the submissions without oral argument.
The Court notes that plaintiff is not entitled to amend her complaint as of right because she took more than twenty-one days to cross-move to amend. See Fed. R. Civ. P. 15(a)(1)(B) (providing that plaintiff may amend pleading as matter of course once within twenty-one days of service of responsive pleading or Rule 12 motion).
II. BACKGROUND
Peck is a Black woman who has worked in the Sheriffs Office as a Sheriff Deputy-Custody since April 10, 2006. Dkt. 16-2 (“Compl.”), ¶¶ 4, 28. Judging by the complaint, her time working at the Sheriffs Office went smoothly enough to start. She had no complaints about the workplace until she was transferred from a prior post to the Community Relations Unit. Id. ¶¶ 31, 36.
As will be discussed further below, the Court will take the facts of the proposed amended complaint as true in considering the cross-motions for partial dismissal and amendment of the complaint.
The proposed amended complaint is less than clear about what plaintiffs prior role was or when she left it to work at the Community Relations Unit. However, other allegations in the proposed amended complaint suggest that plaintiff used to be stationed at the jail. Compl. ¶ 36.
According to Peck, that new role got off to an inauspicious start. Compl. ¶ 31. Not long after her transfer to the Community Relations Unit, her supervisor, Sergeant Jonathan Seeber, called her into his office. Id. While she was meeting with him, Jonathan allegedly said to plaintiff “so I have to tell you, the only reason that we brought you in to the unit is because you are Black.” Id.
Peck claims that her relationship with Jonathan did not improve much after that rocky beginning. Instead, she alleges that Jonathan regularly sends her emojis of “Black” hands. Compl. ¶ 31. Apparently, he and Chief Katherine Trask also routinely make fun of plaintiff's “urban dialect, ” for example by lampooning her pronunciation of the word “that” as “dat.” Id. Plaintiff claims that they would also often tell her not to “sound like Frank Fowler, ” the former Chief of Police for the City of Syracuse, who is a Black man. Id. ¶ 39.
Apparently, Jonathan's wife, defendant Deputy Kelly Seeber, has joined in with racially charged slights of her own. Compl. ¶ 32. According to plaintiff, Kelly changed the contact icon for plaintiff on her phone to a picture of Black actress Octavia Spencer dressed as a maid for the film The Help. Id. When plaintiff found out, she became upset and asked that the picture be changed. Id. Kelly refused, and instead showed the icon to Trask and said “doesn't this look like [plaintiff]?” Id. Trask allegedly replied that it did. Id.
Trask's purportedly flippant response only made Peck more upset, and she told Kelly and Trask as much. Compl. ¶ 32. Apparently, Jonathan only laughed and told plaintiff to “relax, ” “get a thick skin, ” and to “stop taking things so personal[ly].” Id. Plaintiff describes these and similar “racially disparaging comments” as “regular and continuous” in the Sheriff's Office. Id.
According to Peck, she applied for a promotion to the rank of Sergeant in 2017. Compl. ¶ 34. She was ultimately denied. Id. Plaintiff alleges that the candidates chosen in her stead were White male officers who had the same Civil Service test score that plaintiff had. Id. She also alleges that she had seniority over both. Id.
On August 7, 2019, Peck tripped backwards over a sandbag placed in front of the Sheriff's Office. Compl. ¶ 32. Plaintiff's accident was caught on video, which plaintiff claims Jonathan has admitted to showing to several officers around the office. Id. Apparently, the video became the subject of ridicule and claims by her other coworkers that plaintiff was faking her injuries. Id. Plaintiff applied for disability benefits under New York General Municipal Law § 207-c, which were approved in October of 2019. See Id. ¶ 33.
In November of 2019, Peck tried her hand at a promotion to Sergeant for a second time. Compl. ¶ 34. She interviewed for that position on November 4 of that year. Id. However, she claims that she was denied promotion once again. Id. This time, a Hispanic man and a White woman got the promotion plaintiff was after. Id. But plaintiff alleges that she had both seniority and higher Civil Service test scores than both new Sergeants. Id. According to plaintiff, defendant Chief Esteban Gonzalez made these promotion decisions, or else recommended these individuals to defendant Sheriff Eugene Conway to make the final call. Id.
Around December of 2019, defendant Chief Deputy Susan DeMari was appointed to the benefits committee at the Sheriff's Office. Compl. ¶ 33.
Apparently, DeMari's arrival on the committee was an ill omen for Peck, because she received a letter dated February 18, 2020 denying her benefits from her August 7, 2019 accident. Id. Plaintiff appealed this denial, but apparently the committee ignored her appeal. Id. Plaintiff claims that, “upon information and belief, ” similar on-duty injuries suffered by White or male co-workers did not face the same obstacles. Id.
The complaint is a model of murkiness on what, precisely, this “denial” meant. Plaintiff alleges that her benefits were approved in October 2019. Compl. ¶ 33. Whether she had been granted benefits in October of 2019 but they were not renewed in February of 2020 or whether they were retroactively withdrawn is left to the imagination. See id.
In the background of these alleged denials, Peck's working relationship with Jonathan continued to lead to conflict. Plaintiff alleges that she “has been and continues to be held to greater scrutiny and higher standards of performance and restrictions than her White counterparts.” Compl. ¶ 36. She claims that this scrutiny intensified once she started complaining about discrimination. Id.
Jonathan seems to be a particular source of scrutiny concerning Peck's work. See Compl. ¶ 36. According to plaintiff, he repeatedly threatens to send her back to her previous post working at the jail. Id. For example, on January 29, 2020, Jonathan sent plaintiff a text message ordering her to call him immediately or he would “have her ‘transfer papers set for the jail[.]'” Id.
Judging by the proposed amended complaint, June seemed to be the tipping point for Peck's work environment at the Sheriff's Office. On June 1, 2020, plaintiff and Jonathan discussed the death of George Floyd. Compl. ¶ 35. During that conversation, Jonathan apparently denied that George Floyd's death was caused by racial discrimination but instead was “just a ‘death in custody' and that [plaintiff] had been ‘brainwashed'” for believing otherwise. Id.
On June 11, 2020, Peck complained about “the discriminatory and hostile work environment” to Jonathan and Trask. Compl. ¶ 38. In response, she alleges that they chose a “car seat re-certification instructor” who had a “well-known dislike for [p]laintiff.” Id. A White coworker apparently was not burdened with a similar difficulty. Id. Plaintiff notes that she “was not provided or offered any written complaint form to file formally at that time.” Id.
Then, on June 15, 2020, Jonathan and Trask “ganged up on” Peck to ask her “why her computer was not on and what time she arrived.” Compl. ¶ 38. Trask then demanded in front of plaintiff's coworkers that Jonathan write plaintiff up for “not producing a feedback email.” Id. The next day, Peck alleges that she and her union representative attended a mediation with Jonathan and Trask. Id. ¶ 39. At the mediation, plaintiff raised the “discriminatory and retaliatory” conduct described above. Id.