Dollinger v. N.Y. State Ins. Fund

ROBERT A. DOLLINGER, Plaintiff, v. NEW YORK STATE INSURANCE FUND; NYSIF BOARD OF COMMISSIONERS;WILLIAM O'BRIEN; PETER CUSICK; JAMES FEHRER; CHARLES BROWNING;SCOTT ENGLEHART; MARK KENYON; HEATHER WOOLFOLK;JOSEPH MULLEN; ALYCE SIEGEL; SUSAN LEFKOWITZ; JOHN MASSETTI;JOE NOLTE; THOMAS RACKO; TINA CHRISTIANO; ROBERT VERHAYDEN;and MARK GALLO, Defendants.

3:14-CV-908 (MAD/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

November 18, 2016

APPEARANCES:

ROBERT A. DOLLINGER

84 State Line Road

Vestal, New York 13850

Plaintiff, pro se

OFFICE OF THE NEW YORK

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants

OFFICE OF FRANK W. MILLER

6575 Kirkville Road

East Syracuse, New York 13057

Attorneys for Defendant Browning

OF COUNSEL:

JOSHUA L. FARRELL, AAG

ADRIENNE J. KERWIN, AAG

CHARLES C. SPAGNOLI, ESQ.

FRANK W. MILLER, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Pro se plaintiff, Robert Dollinger, brought this action against his employer, the New York State Insurance Fund ("NYSIF"), alleging discrimination, retaliation, and hostile work environment based on his sexual orientation and disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"). See Dkt. No. 1. Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 5-1. Plaintiff responded, filed a cross-motion to amend his complaint, and submitted a proposed amended complaint in support of his motion. See Dkt. No. 8-1.

On March 30, 2015, the Court issued a Memorandum-Decision and Order granting in part and denying in part Defendant's motion to dismiss. See Dkt. No. 10 at 21. The Court dismissed Plaintiff's Title VII discrimination, retaliation, and hostile work environment claims, as well as Plaintiff's ADA discrimination claims, but denied the motion as to Plaintiff's ADA hostile work environment and retaliation claims. See Dkt. No. 10 at 22. Moreover, the Court granted Plaintiff's cross motion to amend the complaint. Thereafter, Defendant filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure seeking dismissal of the amended complaint. See Dkt. No. 20-1. Plaintiff opposed the motion and filed a cross-motion to amend his complaint, but failed to submit a proposed amended complaint. See Dkt. Nos. 23, 25. On August 26, 2015, Plaintiff filed his proposed amended complaint. See Dkt. No. 27. Defendant opposed Plaintiff's motion for leave to amend. See Dkt. No. 26.

In a December 10, 2015 Memorandum-Decision and Order, the Court first found that the amended complaint, as pled, does not entitle Plaintiff to relief because the only Defendant, the NYSIF, was entitled to sovereign immunity because Title I of the ADA did not override sovereign immunity. See Dkt. No. 32 at 7. As such, the Court granted Defendant's motion for judgment on the pleadings. See id. However, in his proposed second amended complaint, the Court noted that Plaintiff named sixteen individuals in addition to the NYSIF. See id. Further, the Court found that, because the only relief Plaintiff seeks is prospective injunctive relief, he isable to bring suit against the individual actors in their official capacities under the Ex Parte Young exception. See id. at 7-8. Moreover, the Court noted that the proposed second amended complaint alleged violations of his rights under the Rehabilitation Act ("RA"), in addition to the ADA claims. See id. at 8. Because New York and its agencies have continued to accept federal funds, the Court found that it has been repeatedly held by courts in the Second Circuit that sovereign immunity has been waived for claims brought pursuant to Section 504 of the RA. See id. Having found no prejudice or undue delay, the Court granted Plaintiff's motion to amend. See id.

Currently before the Court are Defendants' motions for judgment on the pleadings and to dismiss for lack of personal jurisdiction. See Dkt. Nos. 44, 47 & 63.

II. BACKGROUND

Plaintiff is an employee of the New York State Insurance Fund, located at their office in Binghamton, New York. According to Plaintiff, Defendant NYSIF has allowed "a discriminatory hostile atmosphere, which includes discrimination based on disability, sexual harassment, and retaliation." Dkt. No. 27 at 7. Plaintiff claims that he has been subjected to such treatment because he is "regarded as belonging to a group associated with high risk for HIV/AIDS; homosexual men living with HIV/AIDS." Id.

Plaintiff contends that he has "received unwanted emails including unwanted sexual pictures of men as well as derogatory stereotype character representations of gay men and unsafe sex. One graphic references "NO AIDS" and portrays a symbolic male figure engaging in unsafe sex with a line drawn through it." Id. at 8. Further, Plaintiff contends that one email had "an image titled 'Gay Terrorist' and depict[ed] a man dressed like a woman in high heels." Id.

Plaintiff claims that he has "opposed discrimination and participated in internal NYSIF discrimination complaints as well as NYS Division of Human Rights investigations." Id. at 9.According to Plaintiff, he has "reported harassing emails and materials placed in [his] work area to [his] supervisors and the Affirmative Action Office at NYSIF. [His] reporting included NYSIF interviews regarding discriminatory behavior with respect to disability and sexual harassment and written responses." Id. at 10. On March 16, 2012, Plaintiff was named as an aider and abettor in a sex discrimination complaint. See id. In that complaint, it was alleged that Plaintiff "was photographing females in the women's lavatory to share with the then male Policyholder Services Manager who is now the Business Manager." Id. Without providing any detail, Plaintiff alleges that "[o]ther NYSIF interviews involved disability complaints and sexual harassment complaints levied against NYSIF and the then female Business Manager." Id.

Plaintiff also discusses a number of instances of alleged harassment and discrimination that do not appear to directly involve him. For example, Plaintiff contends that, "[u]pon information and belief, security and fire alarms were set off and complaints were levied about the inability to distinguish the tone of the fire alarm from the security alarm and the 'complete lack of concern or competence' of the then female Business Manager in this regard. Although the alarms had been the same in the past, when a prior male attorney was the Business Manager, no complaints were levied for 'lack of concern or competence' in this regard." Id. at 12.

Plaintiff also alleges that he has been falsely named in workplace violence complaints. See id. at 13-14. Although Plaintiff does not specify what actions, if any, were taken against him as a result of the ensuing investigation, he does claim that the NYSIF Executive Deputy Attorney and NYSIF Personnel Director "have held meetings with the entire Binghamton staff including the Legal Department and PEF since 2011 regarding this inappropriate activity." Id. at 13-15.

Plaintiff contends that others are also mistreated at his workplace. Specifically, Plaintiff asserts that "[t]he targeted individuals include the disabled, perceived lesbians and gay men, women and men who do not conform to traditional female or male gender stereotypes, or anyonewho opposes or questions the targeted discriminatory activities. Scare tactics in this regard are especially heightened in the Binghamton District Office where there are many coworkers who did not compete in open Civil Service Exams for hiring or promotions, but were instead selected as a result of political affiliation as well as quid pro quo elements involving former NYSIF Executive Management." Dkt. No. 27 at 16.

Plaintiff contends that the NYSIF Affirmative Action Intake procedures were revised in June of 2012 to include a disciplinary warning regarding the filing of false and malicious complaints. See id. at 17. Despite these changes, however, "NYSIF has not applied this policy and has allowed this continuous discriminatory activity go on without recourse or justice for the targeted victims." Id.

In May of 2013, NYSIF posted a vacancy notice (E13-03) seeking candidates for a Policyholder Service Manager in the Binghamton District Office. See Dkt. No. 27 at 20. Plaintiff applied for the position. According to Plaintiff, that same month, "a male coworker who was the subject of discipline for improper computer use, including shared emails containing sexual content, sexual innuendo, profanity and nudity, who also filed a Workplace Violence Complaint naming NYSIF, me, and the Affirmative Action Officer as aggressors of violence in the workplace, then emailed false negative information relating to my personal life to the NYSIF Executive Director, the NYSIF Director of Administration, and the NYSIF Personnel Director stating that I had photographed women at work and that I had thrown a hot cup of coffee at my nephew at home and stated that he is fearful of me and that 'It is evident that Mr. Dollinger's domestic violence has spill[ed] over into the workplace, compromising the safety of . . . coworkers and resulting in lost productivity. . . .'" Id. at 20-21. Plaintiff claims that, on information and belief, this male coworker was the only other candidate being reviewed for the vacancy. See id. at 21. Despite having worked at the NYSIF for twenty-eight years in variouspositions, Plaintiff has not been promoted to a management position. See id. at 22-23.

In July of 2013, NYSIF posted a second vacancy notice (E13-04) seeking candidates for the Policyholder Service Manager position in the Binghamton District Office. See id. at 23. Plaintiff applied for the position but was not interviewed. See id. In August of 2013, Plaintiff was advised by a coworker "that she and others observed information about [his]...