Dawson v. County of Westchester

351 F.Supp.2d 176

Starr DAWSON, Deborah Johnson, Deborah MacDonald, Pauline Deans, Deloris Cherry Velma Lee and Millicent McFarlane, Plaintiffs, v. COUNTY OF WESTCHESTER, William DeCuiceis, as the Warden of Westchester County Department of Corrections and Individually, Phillip Banks, as Sergeant and as a supervising employee of the County of Westchester and Individually, Rocco Pozzi, Commissioner of Corrections for the County of Westchester, Joseph Miranda, Chief of Operations, Department of Corrections, Robert L. Davis, Deputy Commissioner, Department of Corrections, County of Westchester, Defendants.

No. 01 CIV. 7218(WCC).

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

December 29, 2004.

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Joseph A. Maria, P.C. (Frances Dapice Marinelli, Esq., Of Counsel), White Plains, NY, for Plaintiffs.

Charlene M. Indelicato, Westchester County Attorney (Jane Hogan Felix, Sr. Asst. County Attorney, Shannon S. Brady, Asst. County Attorney, Of Counsel), White Plains, NY, for Defendants.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

Plaintiffs Starr Dawson, Deborah Johnson, Deborah MacDonald, Pauline Deans, Deloris Cherry, Velma Lee and Millicent McFarlane (collectively "plaintiffs") brought this action against defendants County of Westchester (the "County") and the following personnel of the Westchester County Department of Corrections (the "Department"):¹ (1) Sergeant Phillip Banks; (2) Commissioner Rocco Pozzi; (3) Chief of Operations Joseph Miranda; (4) Warden William DeCuiceis;² and (5) Deputy Commissioner Robert L. Davis,³ alleging violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000(e)), the First, Fifth and Fourteenth Amendments, 42 U.S.C. § 1983, § 45-c of the New York Civil Rights Law⁴ and § 296 of the New York Executive Law. Defendants have moved for summary judgment pursuant to FED. R. CIV. P. 56. For the reasons stated hereinafter, we grant the summary judgment motions of defendants Pozzi and Miranda in their entirety. The motions for summary judgment of the County and defendant Banks are granted in part and denied in part.

BACKGROUND

I. Plaintiffs' Factual Allegations

In October of 1999, all plaintiffs were Correction Officers ("COs" or "CO") for the Department except for Johnson who was a Sergeant. (Defs. Rule 56.1 Stmt. ¶ 1.) During that time, the County had a policy against sexual harassment, which applied to the Department. (Id. ¶ 4.) Plaintiffs and Banks attended training with respect to sexual harassment prior to October 1999. (Id. ¶ 23.)

A. The Letters

In early October of 1999, two letters apparently written by inmates were found by personnel of the Department. The first letter contained a drawing and sexually explicit language that referred to numerous female COs, including the plaintiffs. (Defs. Mem. Supp. Summ. J. at 1.) On or about October 7, 1999, CO Kelly Reckard⁵ showed the letter to Deans, the first plaintiff to become aware of its existence.⁶ (Defs. Rule 56.1 Stmt. ¶ 5.) Deans showed the letter to MacDonald who made a copy and brought it to Johnson. (Id.) MacDonald and Johnson reported the letter to Warden DeCuiceis the same day. (Id. ¶ 7.) Sometime later, MacDonald showed the letter to Dawson, Cherry and McFarlane. (Id. ¶ 6.)

The second letter, which also contained explicit sexual language referring to specific COs, including plaintiffs, was found by CO Donna Alford. (Defs. Mem. Supp. Summ. J. at 2.) On October 8, 1999, Alford showed Deans the second letter in the presence of Banks. Banks became aware of the letters through rumors that day, but did not actually see the letters until Deans showed them to him. (Defs. Rule 56.1 Stmt. ¶ 8.) Deans made a copy of each letter for Banks. (Defs. Mem. Supp. Summ. J. at 2-3.) Banks told Deans he would try to help identify the writer of the letters and, if the writer was an inmate, transfer that inmate to the old jail. (Banks Dep. at 73.) Banks never reported the letters to his captain or the warden. (Pls. Mem. Opp. Summ. J. at 3.) Deans later showed the second letter to Johnson who reported it to DeCuiceis on an unspecified date. (Johnson Dep. at 52, 59.)

Lee did not find out about the letters until she returned from vacation on October 11, 1999. (Lee Dep. at 8.) According to Lee, upon entering the Westchester County Correctional Facility (the "Correctional Facility"), she saw Banks and CO Norman Bush standing together and she observed Banks giving Bush a piece of paper. (Id. at 9.) When Lee asked to see the piece of paper, Bush was hesitant to show it to her. Lee claims Banks said, "You made the top 15." (Pls. Mem. Opp. Summ. J. at 5.) Banks encouraged Bush to show Lee the letter but asked Lee, "Do you have your sense of humor with you today?" (Id., Ex. 25.) Lee was given the letter, read it and walked away. (Id.) As she was walking away, Lee claims Banks said to her, "At least yours was the mildest of them all." (Id.) Later, MacDonald showed Lee both letters. (Id.) Lee reported the incident with Banks to CO Scott Delfa, a union representative, who spoke to Cpt. Soychek. (Id. at 5.) The only other statements Lee claims Banks made to her were "How are you Miss Lee" and "Everything all right with you today, Miss Lee?" (Lee Dep. 43.) These interactions occurred in early November of 1999. (Id. at 42.)

According to Banks, he showed Lee the letter first and asked if it was okay to show it to Bush, whereupon Lee responded that she did not care. (Banks Dep. at 87.) At that point Bush read the letter. Banks denies making the statement "You made the top 15" and the comment about the mildness of the reference to Lee, but does acknowledge telling Lee that she had to have a sense of humor to read the letter. (Id. at 88.)

According to Cherry, on October 11, 1999, while she was eating lunch in the mess hall, Banks and Sgt. Sheridan Reynolds sat down with her. (Pls.Mem.Opp.Summ. J., Ex. 23.) CO Middleton came into the mess hall and yelled to Banks, "Show me that letter, man." (Id.) Banks placed one of the letters on the table for Middleton to read and Cherry said to Banks, "I know what you're doing." (Id.) Cherry further testified that she had seen the letter before this incident but was unaware that Banks had a copy of it. (Cherry Dep. at 26.) She later reported this incident to Johnson. (Pls.Mem.Opp.Summ. J., Ex. 23.) Cherry further alleges that on several occasions Banks stopped and stared at her. (Cherry Dep. at 40.)

Banks' version of the incident is much different. He claims while having lunch with Cherry, he told her that he hoped that the letters were not getting her down. (Banks Dep. at 97.) He claims that Cherry said something to the effect that the letter was a lie and that her breasts were not small as she cupped them with her hands. (Id.) Banks claims everyone laughed and Cherry walked away. (Id.)

McFarlane also claims to have had an offensive incident with Banks and apparently witnessed him giving other COs a copy of one of the letters. On approximately October 11, 1999, McFarlane was in the control area, often referred to as the "bubble," and Banks showed her a copy of the first letter. (McFarlane Dep. at 10.) She claims Banks and other unidentified COs were there and that the letter was "being circulated." (Id. at 12.) The manner in which the letter was being circulated, as described by McFarlane, is unclear:

Q: When you say the letter was being circulated, what do you mean by that?

A: Like — I can't remember exactly who was with him, but then, you know, they had different copies of the same letter.

Q: Did you see him giving copies to other people?

A: Officers. I don't know exactly which officer that was.

Q: You don't know any of the officers that you saw him hand it to?

A: (No verbal response.)

Q: How do you know that it was this letter that he was giving to the other officers?

A: Because the picture that's on the letter, okay, as opposed to reading exactly what it said.

Q: Did he give you a copy or did someone else give you a copy?

A: (No verbal response.)

(Id. at 12-13.)

On October 9, 1999, McFarlane was in the mess hall eating lunch with Banks and Reynolds. (McFarlane Dep. at 19; Pls. Mem. Opp. Summ. J., Ex. 24.) According to McFarlane, Banks asked her, "What other body parts do you have pierced?," referring to the sexually explicit letters. (McFarlane Dep. at 20; Pls. Mem. Opp. Summ. J., Ex. 24.) McFarlane responded, "I find this line of conversation offensive and I wish you to stop." (Id.) She made the same statement again to Banks when he again commented on her piercings. (Id.) Reynolds then told Banks to back off because McFarlane had complained about comments made by another CO before. (Id.) McFarlane complained to a sergeant about Banks' behavior and made a statement to the Special Investigative Unit ("SIU"). (McFarlane Dep. at 24.)

According to Banks, the comment he made to McFarlane at lunch was, "Millicent, don't you think that's excessive? What are you trying to do, cover your entire body with piercing jewelry?" (Banks Dep. at 101.)⁷

On October 11, 1999, CO R. Hittman, not a party to this action, claims that Banks showed him one of the letters. (Pls.Mem.Opp.Summ. J., Ex. 26.) Hittman reported this to Johnson and made a statement to the SIU. (Id.) Banks denies showing Hittman the letter. (Banks Dep. at 91.)

Also on October 11, 1999, CO Vernice Collins, also mentioned in the letters but not a party to this action, saw Banks as she arrived to work and he said to her, "You made the top 15 list." (Pls.Mem.Opp.Summ. J., Ex. 35.) Collins did not know what that meant and Banks told her he would show the letters to her later. (Id.) When Collins saw Johnson later that day, Johnson showed her the letters and Collins mentioned Banks' comment. (Id.)

Around October 8, 1999, Dawson claims that Banks shouted at her down the hallway, "I want to show you something." (Dawson Dep. at...