Sotak v. Bertoni

501 F.Supp.3d 59

Rose A. SOTAK, Plaintiff,

v.Frank BERTONI, Robert Mack, Thomas R. Augostini, Leonard J. Perfetti, John Doe No. 1, John Doe No. 2, John Doe No. 3, and John Doe No. 4, Defendants.

3:18-CV-288

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

Signed November 4, 2020

OF COUNSEL: ALBERT J. MILLUS, JR., ESQ., JEFFREY A. JAKETIC, ESQ., HINMAN, HOWARD LAW FIRM, Attorneys for Plaintiff, P.O. Box 5250, 80 Exchange Street, 700 Security Mutual Building, Binghamton, NY 13902.

OF COUNSEL: CRYSTAL R. PECK, ESQ., BAILEY, JOHNSON & PECK, P.C., Attorneys for Defendants, 5 Pine West Plaza, Suite 507, Washington Avenue Extension, Albany, NY 12205.

MEMORANDUM–DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

On February 8, 2018, plaintiff Rose A. Sotak ("Sotak" or "plaintiff"), the former Supervisor of the Town of Union (the "Town"), filed this civil rights action in Supreme Court, Broome County, against defendants Town Board Members Frank Bertoni ("Bertoni"), Robert Mack ("Mack"), Thomas R. Augostini ("Augostini"), Town Clerk Leonard J. Perfetti ("Perfetti"), and John Doe Nos. 1 through 4 (the "Does").

According to Sotak's original, seven-count state court complaint, the all-male Board defendants conspired to remove her as Town Supervisor in violation of 42 U.S.C. § 1983 and related state law by causing her to be investigated for workplace misconduct, publicizing the results of this investigation, and then using the whole affair to instigate a criminal prosecution by the Broome County District Attorney's Office (the "DA's Office"). See Dkt. Nos. 1-2, 8.

On May 18, 2018, shortly after they removed the case to federal court, Dkt. No. 1, defendants moved under Federal Rule of Civil Procedure ("Rule") 12(b)(6) to dismiss Sotak's complaint in its entirety based on their contention that, inter alia , her pleading failed to plausibly allege any actionable misconduct by the Board members. Dkt. No. 12. According to defendants, the Board chose to investigate plaintiff after receiving multiple complaints about her workplace behavior from subordinate Town employees. Id. In defendants’ view, this personnel investigation was not improper just because plaintiff felt wronged by it. Id.

On June 6, 2018, Sotak amended her pleading as of right, Dkt. No. 16, and defendants’ first motion to dismiss was denied as moot, Dkt. No. 20. Plaintiff's seven-count amended complaint asserted a § 1983 Equal Protection claim for gender discrimination, Am. Compl. ¶¶ 61-69, malicious prosecution claims under § 1983 and state law, id. ¶¶ 70-80, 85-86, a § 1983 conspiracy claim, id. ¶¶ 81-84, a state law claim for defamation, id. ¶¶ 87-95, a state law claim for intentional infliction of emotional distress, id. ¶¶ 96-101, and a prima facie tort claim under state law, id. ¶¶ 102-07.

On August 3, 2018, defendants renewed their pre-answer motion to dismiss against Sotak's amended complaint. Dkt. No. 23. The Court heard oral argument on November 26, 2018 and denied defendants’ motion from the bench. Dkt. No. 34. Thereafter, the parties completed discovery. They also tried and failed to reach a mediated resolution. Dkt. No. 74.

On July 8, 2020, defendants moved under Rule 56 for summary judgment based on their renewed contention that Sotak has not marshaled evidence in discovery from which a reasonable jury could find in her favor on any of her claims. Dkt. No. 65. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument.

II. BACKGROUND

The Town is situated in Broome County. Sotak Decl., Dkt. No. 70-2 ¶ 5. The Board (defendants prefer to call it the Council) is the Town's governing body. Defs.’ Rule 7.1(a)(3) Statement ("Defs.’ Facts"), Dkt. No. 70-3 ¶¶ 1-2. The Board (or Council) is composed of one Supervisor, who serves a two-year elective term, and four Board members (or Councilmen), who serve four-year elective terms. Id. ¶ 4.

Aside from these five elected officials, the Town also employs about 160 other people if you exclude seasonal staffing. Defs.’ Facts ¶ 2. And although many of these workers enjoy civil service and union protections, the Town's eight department heads do not: with the exception of the Town Clerk (who is elected), the other seven heads are at-will employees who report to the Supervisor. Id. ¶¶ 3-4; see also Pope Aff., Dkt. No. 65-28.

The Supervisor "is the Chief Executive Officer and the head of the administrative branch of Town government." Pope Aff. ¶ 6. Because this official "is responsible for the administration of the general day-to-day operations of the Town," the position requires the Supervisor "to be in direct regular contact with Town employees, particularly the Town department heads." Id. In addition to being in charge of daily operations, the Supervisor is also responsible for appointing a Deputy Supervisor and for naming individual Board members to various Town Committees. Defs.’ Facts ¶¶ 5, 17. The Deputy Supervisor has authority to act whenever the principal officeholder is unable to discharge the duties of office. Id. ¶ 5. And the various Town Committees, chaired by Board members, are responsible for managing various aspects of Town governance. See id. ¶ 17.

Sotak is a realtor who lives in the Town. Sotak Decl. ¶¶ 4-5; Ex. G to Peck Decl. ("Sotak Dep."), Dkt. No. 65-8 at 7:7-17. In 1998, plaintiff won election to the Board. Sotak Decl. ¶ 6; see also Defs.’ Facts ¶ 6. Plaintiff ran and won re-election to her Board seat in 2003 and again in 2007. Sotak Dep. at 15:1-4, 16:3-6.

In 2011, then-Town Supervisor John Bernardo announced that he planned to resign from the Town so that he could take a position in the Broome County government. Defs.’ Facts ¶ 12; Sotak Dep. at 26:11-15. With the exception of defendant Mack, Sotak and the three other named defendants (Bertoni, Augostini, and Perfetti) all held Board seats at the time of Bernardo's announcement. Id. ¶ 11.

Bernardo's resignation led to some political wrangling. Augostini was the Deputy Supervisor under Bernardo and would ordinarily have succeeded him to become Acting Supervisor until an election could be held, but Sotak convinced Augostini to let Bernardo appoint her as Deputy Supervisor instead. Defs.’ Facts ¶ 13.

According to Sotak, defendant Bertoni actually wanted to be named Supervisor at this time, but he could not get the rest of the Board to agree to it. Sotak Dep. at 27:12-20. Instead, Augostini relented and Bernardo appointed plaintiff as Deputy Supervisor with the full support of the Board. Id. ¶ 14. And when Bernardo's resignation as Supervisor became effective, plaintiff was named Acting Supervisor. Id. ¶ 6; Sotak Decl. ¶ 6.

In 2013, Sotak won election as Town Supervisor. Defs.’ Facts ¶ 6. In January 2015, the Board's composition changed when Mack, a named defendant, won election to plaintiff's open Board seat. See Mack Aff., Dkt. No. 65-25 ¶ 1. Mack joined fellow Board members (and defendants) Bertoni, Augostini, and Perfetti, who all had long relationships with plaintiff from their years together on the Board. Id. ¶ 4.

Sotak, now the duly elected Town Supervisor, appointed Mack and Perfetti to co-chair the "Employee and Safety Committee," which the parties also refer to the "Employee Committee." Defs.’ Facts ¶¶ 18, 20. The Employee Committee hears and investigates employee complaints and reports the findings to the Board. Id. ¶ 19. However, a review of defendants’ affidavits and other filings indicate that this Committee was not a particularly busy assignment—employee complaints were infrequent, and any complaints about employees who were covered by a union bargaining agreement (which was almost all of the Town's 160 employees) were handled through other avenues.¹

The events giving rise to this lawsuit begin with a complaint about Sotak's workplace behavior. On June 15, 2016, Bertoni sent an e-mail to fellow Board members Mack and Perfetti and to Town Attorney Alan Pope and Town Comptroller Laura Lindsley. Defs.’ Facts ¶ 21. According to this e-mail, Bertoni had received complaints about plaintiff from Town employees and wanted to discuss how best to proceed. Ex. I to Peck Decl., Dkt. No. 65-10. Bertoni's e-mail stressed that these employee complaints needed "to be kept confidential within the employee[ ] committee." Id. Plaintiff was excluded from this e-mail exchange. Defs.’ Facts ¶ 22.

According to defendants, Sotak found out about the e-mail anyway. Defendants contend that plaintiff showed up at a Board meeting that was held later that day with a copy of Bertoni's "confidential" e-mail. Defs.’ Facts ¶ 24. As Mack explained in his affidavit, plaintiff was able to read this e-mail because plaintiff's assistant had an administrative password that gave her access to "all emails to and from Town personnel." Mack Aff. ¶ 10.

Defendants contend Bertoni refused to answer any of Sotak's questions about the e-mail or about the employee's complaint "because of the complainant's request for confidentiality." Mack Aff. ¶ 25. Plaintiff, for her part, testified that she does not really remember these events and claims that she did not learn about this personnel complaint until a short time later. See Sotak Dep. at 41:2-9.

It turns out this complaint had been made by Joseph Moody, the Town's Director of Economic Development. Defs.’ Facts ¶ 26. As a department head, Moody was one of the few at-will employees employed by the Town. Id. The parties agree that Moody had verbally complained to Bertoni about Sotak's allegedly "harassing and bullying behaviors." Id. ; see Sotak Decl. ¶ 8.

However, after the contentious Board meeting where Sotak asked about the e-mail exchange from which she was excluded, Moody asked Bertoni if he could withdraw his complaint. Defs.’ Facts ¶ 27. In defendants’ telling, Moody was nervous—if plaintiff already knew about the complaint and who sent it, then any investigation into the allegations obviously could not "remain confidential." See id.

After Moody withdrew his complaint,...