Cater v. New York

316 F.Supp.3d 660

Lisa Marie CATER, Plaintiff,

v.The State of NEW YORK, the Empire State Development Corporation, Governor Andrew Cuomo (in His Individual Capacity) and William Ballard Hoyt a/k/a Samuel B. Hoyt, III (in His Individual Capacity, Defendants.

17 Civ. 9032 (RWS)

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

Signed June 21, 2018

Derek Smith Law Group PLLC, 30 Broad Street, New York, NY 10004, By: Paul Liggieri, Esq., Attorneys for Plaintiff.

Office of N.Y.S. Attorney General, 120 Broadway, 24^th Floor, New York, NY 10271, By: John M. Schwartz, Esq., Attorneys for Defendants State of New York and Governor Andrew Cuomo.

OPINION

ROBERT W. SWEET, U.S.D.J.

Defendants State of New York (the "State") and Governor Andrew Cuomo (the "Governor") (collectively, the "Defendants") have moved pursuant to Fed. R. Civ. P. 12(b) (1) and 12(b) (6) to dismiss, as against them, the amended complaint ("AC") of Plaintiff Lisa Marie Cater ("Cater" or the "Plaintiff"). Based on the conclusions set forth below, the motion is granted, and the AC against the Defendants is dismissed.

Prior Proceedings

The Plaintiff filed her initial complaint alleging sexual harassment by defendant William Ballard Hoyt, a former regional president of defendant Empire State Development Corporation ("ESDC"), between October of 2015 and October 2017. She alleged that, despite her complaints regarding Hoyt's actions, the State and the Governor, solely in his individual capacity, failed to prevent or investigate Hoyt's alleged unlawful conduct on November 18, 2017. She filed the AC on December 5, 2017 alleging eleven causes of action as follows:

First Cause of Action

Violation of Rights Secured by 42 U.S.C. § 1983 (Against all Defendants)

(AC ¶¶ 149–155)

Second Cause of Action

(Individual Supervisory Liability— 42 U.S.C. § 1983 )

(AC ¶¶ 156–164)

Third Cause of Action

(Equal Protections— 42 U.S.C. § 1983 )

(AC ¶¶ 165–174)

Fourth Cause of Action

(Equal Protections— 42 U.S.C. § 1983 )

(AC ¶¶ 175–178)

Fifth Cause of Action

(Monell Claim—42 U.S.C.—Against Empire State Corporation/Region of Buffalo)

(AC ¶¶ 179–190)

Sixth Cause of Action

(Violation of Rights Secured by 42 U.S.C. § 1985 ) (Against All Defendants)

(AC ¶¶ 191–194)

Seventh Cause of Action

(Violation of Rights Secured by 42 U.S.C. § 1986 ) (Against All Defendants)

(AC ¶¶ 195–198)

As an Eighth Cause of Action for

Discrimination Under State Law (Not Against

Individual Defendants)

(AC ¶¶ 199–201)

As a Ninth Cause of Action for

Discrimination Under State Law (As Against

Individual Defendants)

(AC ¶¶ 202–204)

As a Tenth Cause of Action for

Discrimination Under State Law (As Against

Individual Defendants)

(AC ¶¶ 205–207)

As an Eleventh Cause of Action for Assault

and Battery (As Against Individual

Defendant Hoyt)

(AC ¶¶ 208–214)

Five of the eleven causes of action (the First, Fifth, Sixth, Seventh and Eighth) appear to be asserted against the State, among others, pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 and N.Y. Executive Law § 296. The claims against the Governor (the First, Second, Third, Sixth, Seventh, Ninth and Tenth Causes of Action) appear to be based on his supervisory position.

The AC alleges that Hoyt sexually harassed and assaulted her between October 2015 and October 2017, AC ¶ 29–30, 43–53, 57, 60–68, 85–87, after she emailed ESDC seeking assistance in finding affordable housing in October 2015, that Hoyt responded by email, asked to meet with her, and offered to find her a job in New York State. Id. ¶¶ 38–39. According to Plaintiff, Hoyt then "coerced" Plaintiff into telling him where she lived (id. ¶ 43), and then repeatedly: (a) appeared uninvited at her home (id. ¶¶ 43–44, 48–49, 65, 67), (b) "forcefully asserted himself against [her]" (id. at 44, 49, 87), (c) "unlawfully groped" and "kissed" her (id. ), and (d) sent her "sexually harassing calls, texts and emails, at least one of which included a nude photo of himself." Id. at 46, 47, 52, 60, 63, 65.

The AC further alleges that in or around February 2016, Hoyt "called in a political favor" and secured a position for Plaintiff as a "Management Confidential" secretary at the New York State Department of Motor Vehicles ("DMV"), id. at 54, that Hoyt repeatedly harassed her when she was at her DMV job (id. at 61, 63–65), and threatened to have her fired if she did not do as he wished (id. at 68), and that Hoyt forced her to sign a settlement agreement. Id. at 94–102.

The AC also alleges that she communicated with officials at certain New York State agencies about her complaints regarding Hoyt's conduct, but that she was dissatisfied with their responses, Id. at 113, 120, 123, 132, and that she made a number of complaints to the Office of the Governor, id. at 176–80, 104, 107–109, and was referred to various state agencies. Id. at 110, 123.

The AC further alleges that after receiving psychological counseling, the Plaintiff spoke to the media, Hoyt resigned, and that the emotional distress caused by the Defendants prevented her from returning to work. Id. at 117, 135, 137.

The motion of the Defendants was heard and marked fully submitted on February 28, 2018.

The Applicable Standard

On a Rule 12(b)(6) motion to dismiss, all factual allegations in the complaint are accepted as true and all inferences are drawn in favor of the non-moving party. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). A complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). In other words, the factual allegations must "possess enough heft to show that the pleader is entitled to relief." Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (internal quotation marks omitted).

While "a plaintiff may plead facts alleged upon information and belief, ‘where the belief is based on factual information that makes the inference of culpability plausible,’ such allegations must be ‘accompanied by a statement of the facts upon which the belief is founded.’ " Munoz–Nagel v. Guess, Inc., No. 12 Civ. 1312 (ER), 2013 WL 1809772, at *3 (S.D.N.Y. Apr. 30, 2013) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) ); Prince v. Madison Square Garden, 427 F.Supp.2d 372, 384 (S.D.N.Y. 2006) ; Williams v. Calderoni, 11 Civ. 3020 (CM), 2012 WL 691832, at *7 (S.D.N.Y. Mar. 1, 2012). The pleadings "must contain something more than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation and internal quotation omitted).

I. The Claims Against the State are Barred by the Eleventh Amendment

"It is clear, of course, that in the absence of consent, a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (citations omitted). This jurisdictional bar applies to suits in law and equity. Id. Thus, "an individual may not sue a state, its agencies or officials in federal court, absent the state's consent or an express statutory waiver of immunity."

Holmes v. Caliber Home Loans, Inc., No. 16 CV 3344, 2017 WL 3267766, at *5 (S.D.N.Y. July 31, 2017) (citing College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) ).

Here, it is undisputed that the State of New York has not given its consent, nor did Congress make an express waiver or carve-out of immunity with respect to the claims Plaintiff raises under 42 U.S.C §§ 1983, 1985, or 1986. As a result, such claims are barred, and must be dismissed. Keitt v. New York City, 882 F.Supp.2d 412, 424 (S.D.N.Y. 2011) ; see also Holmes, 2017 WL 3267766, at *5 ( Section 1985 and 1986 claims dismissed against New York State agency on Eleventh Amendment grounds); McMillan v. N.Y. State Bd. Of Elections, No. 10 CV 2502, 2010 WL 4065434, at *3 (E.D.N.Y. Oct. 15, 2010), affd, 449 Fed.Appx. 79 (2d Cir. 2011) (summary order) (New York has not consented to suits brought in federal court under the authority of 42 U.S.C. § 1983 ).

The Eleventh Amendment also bars federal courts from adjudicating alleged violations of state law, absent consent. Pennhurst, 465 U.S. at 106, 104 S.Ct. 900. It is undisputed that New York has not waived its immunity from suit under the New York Human Rights Law, of which Section 296 of the N.Y. Executive Law is a part. Rumain v. Baruch College of the City University of New York, No. 06 Civ. 8256, 2007 WL 1468885, at *2 (S.D.N.Y. May 18, 2007).

In Plaintiff's opposition ("Pl. Opp." ECF No. 15), she concedes that New York has not waived its Eleventh Amendment immunity, Pl. Opp. 19, and that no "express exception has been carved out" of Section 1983"to override the Eleventh Amendment." Id. Plaintiff's argument is that "it should make no difference to this Court whether the claims arise under Title VII or 42 U.S.C. § 1983." Id. But this ignores the fact that, unlike Section 1983 and the New York Human Rights Law under which she is suing, Title VII contains an explicit abrogation of states' Eleventh Amendment immunity. Pl. Opp. 19–20; Fitzpatrick v. Bitzer, 427 U.S. 445, 447, 449 n.2, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). By contrast, under Section 1983, states are not even considered "persons" subject to liability. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ("We hold that neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983."...