Perry v. Slensby

KEVIN PERRY, Plaintiff, v. CAPTAIN ROBERT SLENSBY, Defendant.

No. 16-CV-08947 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 28, 2018

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

Plaintiff Kevin Perry ("Plaintiff") filed this action against Captain Robert Slensby ("Defendant") under 42 U.S.C. § 1983 ("Section 1983" or "§ 1983"), alleging gender-based sexual harassment in violation of the Equal Protection Clause of the Fourteenth Amendment. Plaintiff claims that Defendant's alleged behavior over a period of about two years constituted sex-based workplace discrimination that resulted in a hostile work environment for Plaintiff. Defendant now moves to dismiss with prejudice Plaintiff's first amended complaint ("Amended Complaint") pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons stated below, Defendant's motion is DENIED.

BACKGROUND

In considering a Rule 12(b)(6) motion, a court is limited to the facts alleged in the complaint and is required to accept those facts as true. See LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009). Accordingly, the following facts are taken from the Amended Complaint and are presumed to be true for purposes of this motion to dismiss.

In 2001, Plaintiff began working as a corrections officer for the County of Westchester. (Am. Compl. (ECF No. 17) ¶ 4.) At all times relevant to this matter, Defendant served as Plaintiff's supervisor. (Id. ¶ 31.) In 2012, Plaintiff received a telephone call from Defendant, then a sergeant, while Plaintiff was at home recovering from knee surgery. (Id. ¶¶ 6-7.) Defendant made the call from the parties' workplace to conduct a work-related check. (Id. ¶¶ 5, 7.) Plaintiff did not answer the telephone because he was using the bathroom, and informed Defendant of this fact upon returning the call. (Id. ¶¶ 8-9.) Defendant responded, "Were you playing with your meat? Were you stroking your dick?" (Id. ¶ 10.) Plaintiff responded, "Excuse me?" and Defendant replied before hanging up, "I am just doing a home check, you are good." (Id. ¶ 11-12.) Plaintiff did not report this conversation because he viewed Defendant's comments as "just words." (Id. ¶ 13.)

On July 22, 2014, Plaintiff was in jail booking with Defendant, who had been promoted to captain since the 2012 telephone exchange, when Defendant placed his hands on Plaintiff's shoulders and began massaging him. (Id. ¶ 14.) As he did so, Defendant said, "If I was a female, I would fuck the shit out of you, and I would get a strap on and go for broke up your ass." (Id. ¶ 15.) Plaintiff pushed his chair back and looked in shock at Defendant and Defendant walked away. (Id. ¶¶ 16-17.) Plaintiff reports that he was "enraged" following this incident. (Id. ¶ 18.) During the following week, again in the jail booking area, Defendant placed his hand on Plaintiff, inquiring whether he was all right. (Id. ¶ 15.) Plaintiff told Defendant he was fine and directed Defendant not to touch him again. (Id. ¶ 20.) This incident apparently took place at some point during the night shift. (Id. ¶ 14.)

After the July 22, 2014 incident, Defendant called Plaintiff on his cell phone, inquiring when Plaintiff picked up, "You don't know my voice by now?" (Id. ¶ 21.) Plaintiff demurred and Defendant announced his identity, causing Plaintiff to disconnect the call. (Id. ¶ 22.) Defendant called back and Plaintiff did not answer. (Id. ¶ 23.)

When Plaintiff complained about the July 22, 2014 incident, Defendant denied making "blatantly sexually suggestive" comments to Plaintiff. (Id. ¶ 25.) Plaintiff continued to have ongoing contact with Defendant, who still served as one of his supervisors. (Id.)

Plaintiff was treated by "several" mental health professionals who determined that Plaintiff has "substantial anxiety related to the incident of July 22, 2014." (Id. ¶ 26.) One such professional concluded that Plaintiff suffered from "chronic and severe posttraumatic stress disorder and serious occupational impairment due to PTSD symptoms" relating to the episodes described above. (Id. ¶ 29.) Plaintiff has experienced substantial sleeplessness, emotional distress and anxiety and has been unable to go to work for long periods of time, with "consequent financial losses." (Id. ¶ 30.)

Plaintiff alleges that Defendant's behavior constituted sexual harassment on the basis of Plaintiff's gender, and that it resulted in the creation of a "sexually hostile work environment" for Plaintiff, in violation of the Fourteenth Amendment. Defendant moves to dismiss the Amended Complaint in its entirety.

STANDARD OF REVIEW

On a motion to dismiss for "failure to state a claim upon which relief can be granted," Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the complaint "contain[s] 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] 'not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "While legal conclusions can provide the framework of acomplaint, they must be supported by factual allegations." Id. at 679.

When there are well-pleaded factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Ultimately, determining whether a complaint states a facially plausible claim upon which relief may be granted must be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

DISCUSSION

As a preliminary matter, Defendant asserts that the portion of Plaintiff's claim relating to Defendant's initial 2012 telephone call is time-barred and should not be considered by the Court. (Mem. Of Law In Supp. Of Mot. To Dismiss (ECF No. 19) ("Def.'s Mem.") 6.) Regardless of the Court's ruling on this issue, Defendant requests that the Court dismiss Plaintiff's Amended Complaint in its entirety because, even considering the 2012 incident, Defendant's alleged conduct does not amount to the creation of a hostile work environment in violation of Plaintiff's Fourteenth Amendment rights. Defendant avers that this conclusion is justified because (1) the conduct Plaintiff alleges was neither severe nor pervasive as a matter of law and (2) Plaintiff has failed to allege that he was sexually harassed on the basis of his gender. (Def.'s Mem. 5-9.) For the reasons discussed below, the Court agrees that the 2012 incident is time-barred but does not find dismissal appropriate as to the remaining elements of Plaintiff's claim at this stage. Furthermore, the Court does not find Defendant's argument that he is entitle to qualified immunity availing.

A. Statute of Limitations

"The statute of limitations for actions under § 1983 is the statute of limitations applicable to personal injury actions occurring in the state in which the federal court sits." Condit v. Bedford Cent. Sch. Dist., 2017 WL 4685546, at *7 (S.D.N.Y. Oct. 16, 2017) (internal quotation marks and citation omitted); see also Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015); Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (citing Owens v. Okure, 488 U.S. 235, 249-50 (1989)). New York law provides for a three-year statute of limitations for personal injury claims. N.Y. C.P.L.R. § 214(5). Thus, the applicable statute of limitations for Section 1983 actions arising in New York requires claims to be brought within three years. See, e.g., Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (applying three-year statute of limitations to state employee's Section 1983 claims alleging gender and race discrimination); Plumey v. New York State, 389 F. Supp. 2d 491, 496-97 (S.D.N.Y. 2005) (applying the same to state employee's Fourteenth Amendment equal protection claims alleging sex discrimination). Claims outside of that time frame are barred unless there is a basis under New York state law¹ to toll the statute of limitations. See Plumey, 389 F. Supp. 2d at 497.

Conversely, the accrual of claims brought under Section 1983 is a question of federal law. See Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017). Generally, a claim will accrue once a plaintiff "knows or has reason to know of the injury which is the basis of his action." Cornwell, 23 F.3d at 703 (citing Singleton v. New York, 632 F.2d 185, 191 (2d Cir. 1980)). However, where a plaintiff has been subjected to a "continuous practice and policy of discrimination," "the commencement of the statute of limitations period may be delayed until the last discriminatory actin furtherance" of such practice and policy. Id. (quotations and citations omitted). Although the continuing violation doctrine arises from claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. ("Title VII"), it has been applied equally to Section 1983 claims within the Second Circuit. See Plumey, 389 F. Supp. 2d at 498; Cornwell, 23 F.3d at 704.

"In order to assert a continuing violation, a plaintiff must establish both (1) a policy or practice which caused the alleged discrimination, and (2) that the timely claim is continuous in time with the untimely claims." Plumey, 389 F. Supp. 2d at 498 (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998). "[M]ultiple incidents of discrimination, even similar ones, that are not the result of a discriminatory...