Kohutka v. Town of Hempstead

994 F.Supp.2d 305

Theresa KOHUTKA, Plaintiff,

v.The TOWN OF HEMPSTEAD, Charles Milone, John Allback, Christine Reeke, Debra Bove, and Brian Braccio, Defendants.

No. 11–cv–1882 (ADS)(WDW).

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

Jan. 29, 2014.

The Law Offices of Steven Morelli, by: Steven A. Morelli, Esq., Joshua S. Beldner, Esq., Of Counsel, Garden City, NY, for the Plaintiff.

Jaspan, Schlesinger, & Hoffman, LLP, by: Lisa Cairo, Esq., Laurel R. Kretzing, Esq., Of Counsel, Garden City, NY, for the Defendants Town of Hempstead, John Allback, Christine Reeke, Debra Bove, and Brian Braccio.

Law Offices of Dennis M. Lemke, by: Lawrence V. Carra, Esq., Of Counsel, Mineola, NY, for the Defendant Charles Milone.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

The Plaintiff in this case, Theresa Kohutka (“Kohutka” or the “Plaintiff”), commenced this action on April 15, 2011 against the Defendants the Town of Hempstead (the “Town”), Charles Milone, John Allback, Christine Reeke, Debra Bove, and Brian Braccio, asserting causes of action pursuant to 42 U.S.C. § 1983; the New York State Human Rights Law (“NYSHRL”), New York Executive Law § 296 et seq. and the Nassau County Human Rights Law (“NCHRL”).

On August 5, 2011, the Defendants moved pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. By Memorandum of Decision and Order dated March 20, 2012, this Court denied that motion.

On October 17, 2013, the Town, Allback, Reeke, Bove, and Braccio moved pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing the complaint. On that same day, Milone moved separately for the same relief. The Plaintiff opposes the respective motions. For the reasons set forth, the motions are granted in part and denied in part.

I. BACKGROUND

A. Factual Background

Unless stated otherwise, the following facts are drawn from the parties Rule 56.1 Statements and the materials submitted therewith. Triable issues of fact are noted.

1. The Parties

On June 8, 1987, the Plaintiff commenced her employment with the Town as an account clerk at the Town's Animal Shelter. The Plaintiff was promoted to clerk typist in 1988, and promoted to Animal Control Officer (“ACO”) in 1989.

The Town is a municipal corporation located in Nassau County established pursuant to the laws of the State of New York.

Milone is a former employee of the Town who retired on April 29, 2011. Milone has been a member of the Republican party for 39 years. From 1973 to 1987, Milone was a member of the Island Park Republican club. From 1987 to the present, Milone has been a member of the Seaford Republican club. Milone held the position of committee person. A committee person gathers petitions, assists on campaigns and in fundraising, and brings in new members to the club. Milone has been the Executive Leader of the Seaford Republican club since 2000. An Executive Leader is the highest ranking official of the club. For this reason, Milone is aware of which members of his club are more “active.” (Milone Dep. Tr., at 23.)

Milone began his employment at the Town as an Electrical Service Supervisor. Less than one year after obtaining employment at the Town, Milone was appointed to the position of the Third Deputy Commissioner of the Department of General Services (“DGS”).

Between 2003 and October 25, 2010, Milone held the employment title of Acting Director of the Town's Animal Shelter. In this capacity, Milone was responsible for making decisions with respect to disciplinary issues. Milone also had authority with respect to hiring decisions. As to open civil service positions, Milone would conduct interviews and make recommendations. However, after October 25, 2010, Milone had no duties with respect to the Shelter.

Allback is an employee of the town whose current title is ACO. Allback became a member of the East Meadow Republican club in 1997, and has maintained membership in that club “on and off” for a number of years.

Reeke is an employee of the town whose current title is ACO. Reeke was a member of the Bellmore Republican club, and then later joined the Wantagh Republic Club. Reeke was admittedly “active” in the club until about 2011 or 2012 because, as she testified, “I don't believe in joining things to get positions. I believe you work for what you earn, not who you know.” (Reeke Dep. Tr., at 17.) Reeke spoke to Milone about which club she should join. Milone told her that other employees at the shelter belonged to the Wantagh club, so she joined that club.

Bove is an employee of the town whose current title is Kennel Supervisor I. From 1986 to 1994, Bove held the position of Kennel person. Bove became an ACO in 1994. Bove was promoted to Kennel Supervisor I in 2010. Bove does not have a college degree and never took any management training courses.

In 1986, when Bove first started working at the Town, she joined the Valley Stream Republican Club. In 2007 or 2008, Bove joined the Malverne Republican club. Since joining the Malverne club, Bove has been a committee person. Bove testified that employees at the shelter talked about their respective Republican clubs.

Bove became “active” in her club shortly before she took the March 2009 promotional exam. Bove testified that she thought it was important to be affiliated with a club while seeking a promotion. According to Bove, Milone would often talk about Republican matters, and she knew that he was very active in the Republican party. At the time she took the promotional exam, Bove had the understanding that Milone would be making the selection and Milone knew that Bove was a member of a Republican club.

Braccio is a part-time employee of the Town. Braccio works at the Town Animal Shelter as a night watchman.

2. Alleged Hostile Work Environment

All Town employees, including Kohutka and Allback, received training with respect to the Town's policy prohibiting sexual harassment in the workplace. Kohutkareceived this training in 1993 and 2008. Despite this training, a number of troubling incidents, some of which are undisputed, arose involving the parties and other Town employees, beginning with an incident on April 16, 2008.

Prior to that date, Kohutka and Allback were friends, went camping together, and were civil to each other. Allback testified that he had a sexual relationship with Kohutka over the course of a year which ended in December 2007. Records of Allback's cellphone demonstrate that, during 2007, Kohutka and Allback contacted each other via the telephone more than 2,000 times. Kohutka denies that she had a sexual relationship with Allback.

On April 16, 2008, an unusually vicious argument erupted between four Shelter employees: Kohutka, Allback, Reeke, and Ken Morrison, an ACO who was Kohutka's romantic partner at the time. The argument began because, according to Kohutka, she wanted to give Allback a “dig” based on the fact that, a few days earlier, Reeke and Allback gave one of their supervisors, Pat Horan, a 50th birthday gift. (Kohutka Dep. Tr., at 35.) Kohutka “knew this was a ... butter-up thing, so she called (Allback) out on it [on April 16, 2008] and he got upset.”

That day, in order to give Allback the “dig,” Kohutka brought a soda and bag of chips for another supervisor, Gary Shaw, for his birthday. Kohutka presented the gift to Shaw in the presence of Reeke, Allback and Bove, among others. Kohutka said, “I don't have to sneak around to butter up the boss.” By giving Shaw the card, the Plaintiff admittedly intended to provoke a response from Allback.

Allback responded, calling Kohutka a “f* * *ing c*unt” in front of multiple supervisors and approximately seven employees, after which Kohutka told Allback to “chew your fucking fingers off.” ( Id. at 29.)

According to Allback and Reeke, Kohutka provoked the comment from Allback by calling him a “sneaky pussy” (Allback Dep. Tr., at 23.), a comment which Kohutka does not recall making.

In any event, an argument ensued between several employees. At one point, Morrison and Kohutka made comments regarding Reeke's personal problems relating to bulimia and cutting, which she had previously confided about to Kohutka. However, Kohutka claims that she attempted to diffuse the situation by pushing Morrison out of the room.

In response to the incident, the supervisors who had witnessed it, John Christianson and Shaw, called all four participants into their offices separately; admonished them about their behavior and the personal nature of the comments to each other; and drafted an Incident Report. Kohutka testified that she met separately with Milone, at his request. The Plaintiff told Milone that she was offended by the comments made by Allback.

However, in response to Milone's question as to whether she wanted to press charges against Allback, the Plaintiff declined. Milone did not attempt to encourage Kohutka to press charges or file a formal complaint. Rather, Milone testified that he believed that there was a formal investigative report prepared regarding the incident, but he never saw a copy.

Milone also met with Allback privately on April 16, 2008 and told Allback that he could not use that type of language in the workplace.

Special Investigator Raymond Enright did not conduct an investigation into the April 16, 2008 incident until May 14, 2008, at which point Enright advised Allback that he could not use that type of language at the workplace. Enright did not prepare a report regarding the incident. According to Enright, his investigation into the incident “didn't last long.” (Enright Dep. Tr., at 29.). Enright testified that, once Allback admitted to making the comment, there was no reason to further investigate the matter. Enright is also a registered Republican.

Enright testified that it is part of his duties and responsibilities to write memoranda; report his findings; and to make recommendations regarding discipline. Following an...