Tromblee v. New York

1

MARY TROMBLEE, Plaintiff, v. THE STATE OF NEW YORK, NEW YORK STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES; CHAD DOMINIE, Individually and in his capacity as a Keyboard Specialist/Secretary for the Office for People with Developmental Disabilities at the Glens Falls Facility; LIAM STANDER, Individually and in his capacity as a Treatment Team Leader and Supervisor for the Office for People with Developmental Disabilities at the Glens Falls Facility; ALEXIS BARLOW, Individually and in her capacity as Treatment Team Leader and Office Supervisor for the Office for People with Developmental Disabilities at the Glens Falls Facility, Defendants.

No. 1:19-cv-00638 (BKS/CFH)

United States District Court, N.D. New York

March 27, 2023

For Plaintiff: Ariel E. Solomon Solomon Law Firm, PLLC

For Defendants the State of New York & New York State Office for People with Developmental Disabilities: Letitia James Attorney General for the State of New York Robert J. Rock William A. Scott Assistant Attorney General, of Counsel Office of the Attorney General

For Defendant Liam Stander: Benjamin W. Hill Capezza, Hill, LLP

For Defendant Alexis Barlow: Ryan T. Donovan Conway, Donovan & Manley, PLLC

MEMORANDUM-DECISION AND ORDER

Hon Brenda K. Sannes, Chief United States District Judge:

I. INTRODUCTION

Plaintiff Mary Tromblee brings this action against Defendants the State of New York, New York Office for People with Developmental Disabilities (“OPWDD”), Chad Dominie, Liam Stander, and Alexis Barlow asserting claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1983, and the New York State Human Rights Law (“NYSHRL”) N.Y. Exec. Law § 290, et seq. (Dkt. No. 88). Presently before the Court are Defendants New York State and OPWDD (the “State Defendants”) Stander, and Barlow's motions for summary judgment, (Dkt Nos. 143, 145, 147), and Plaintiff's motion for partial summary judgment, (Dkt. No. 149). The parties have also filed response and reply papers. (Dkt. Nos. 157-67,172-77). For the reasons that follow, Defendants' motions are granted in part and denied in part, and Plaintiff's motion is denied.

II. FACTS^[1]

A. Plaintiff's Employment

OPWDD is a New York State agency that maintains offices throughout the State. (Dkt. No. 147-1, ¶ 3). Plaintiff was employed by OPWDD as a residential nurse. (Id. ¶ 7). She began working as a residential nurse at the Glens Falls office of OPWDD in or around May of 2016. (Id. ¶ 8).

During the period of May 2016 through October 2017, Defendant Alexis Barlow (“Barlow”) was employed by OPWDD as a Treatment Team Leader and Supervisor at its Glens Falls Office. (Dkt. No. 147-1, ¶¶ 9, 15). During this same period, Defendant Liam Stander (“Stander”) was also employed by OPWDD as a Treatment Team Leader and Supervisor at the Glens Falls Office. (Id. ¶ 10). Plaintiff states that Barlow was her direct supervisor and Stander was another supervisor at the office, and that Barlow and Stander could both approve or deny her overtime requests and dictate her responsibilities at work. (Dkt. No. 160-4, ¶¶ 8-10). Barlow and Stander testified that they were the only OPWDD supervisors regularly at the Glens Falls Office. (Dkt. No. 143-4, at 140; Dkt. No. 145-2, at 249).

Barlow testified that she supervised nurses including Plaintiff, and she also supervised Defendant Chad Dominie (“Dominie”), who was employed as a Keyboard Specialist/Secretary at the Glens Falls Office. (Dkt. No. 143-4, at 25-30, 193). Dominie testified that Barlow was his supervisor. (Dkt. No. 160-5, at 285). Barlow testified that her supervisory duties included approving timecards and travel requests, but that she did not have authority to transfer employees, demote/fire them, or assign them work. (Dkt. No. 143-4, at 30-31). Stander testified that he only supervised Dominie when Barlow was out of the office, and he sometimes asked Dominie to do work. (Dkt. No. 145-2, at 62, 123). Stander said that he signed off on Plaintiff's timecards when Barlow was unavailable. (Dkt. No. 145-2, at 243).

Barlow and Stander testified that as supervisors, they were obligated to immediately report any instances of sexual harassment to the Affirmative Action Officer at OPWDD. (Dkt. No. 143-4, at 41-44; Dkt. No. 145-2, at 163). The Affirmative Action Officer at the time, Margaret Sheehan, likewise testified that supervisors were required to immediately report to her office allegations of sexual harassment. (Dkt. No. 160-4, at 389).

B. Incidents with Dominie

Plaintiff testified that in or about January 2017, Dominie put his hand down her blouse and cupped her breast. (Dkt. No. 143-12, at 28). Plaintiff testified that she reported the incident to Barlow, but she did not report it to Stander. (Id. at 28, 67). Barlow testified that Plaintiff did not report this incident to her, and Stander testified that he was not aware of it. (Dkt. No. 143-4, at 197; Dkt. No. 145-2, at 104).

Another female employee at OPWDD states that in late 2016 to early 2017 she told Stander on one or two occasions “about Mr. Dominie putting his hand down my shirt and touching my breast.” (Dkt. No. 160-6, at 109). This employee states that she met with Stander and Barlow, but she was not aware of them taking any disciplinary action against Dominie.^[2](Id.). Stander testified that this employee did not complain to him about Dominie. (Dkt. No. 145-2, at 107-08).

Plaintiff testified that on two other occasions around this time, Dominie pushed her down onto a couch. (Dkt. No. 143-12, at 30-31). According to Plaintiff, she reported these incidents to Barlow, who witnessed one of them and told Dominie to stop “picking on” Plaintiff. (Id. at 30; see also Dkt. No. 160-4, ¶¶ 20-21). Barlow denies making this comment and testified that Plaintiff did not report being pushed onto a couch. (Dkt. No. 143-4, at 212). Stander testified that he was not aware of these incidents. (Dkt. No. 145-2, at 104-05). According to Plaintiff, at some point after these incidents, a meeting was held between her, Barlow, and Dominie, and Dominie promised to keep his hands off Plaintiff. (Dkt. No. 143-12, at 31, 67).

Plaintiff testified that in January or February of 2017, Dominie said that he liked her pants and slapped her thigh, leaving a bruise. (Dkt. No. 143-12, at 32-33). Barlow testified that Plaintiff did not report this incident. (Dkt. No. 143-4, at 200). Plaintiff testified that on three or four occasions around this time, Dominie grabbed one or both of her wrists and twisted them. (Dkt. No. 143-12, at 32).

Barlow testified that in early 2017, Plaintiff complained to her that Dominie had walked up behind her and, “in a playful way,” pushed the back of her knee with his knee and grabbed her wrist. (Dkt. No. 143-4, at 53-58). Barlow testified that Plaintiff did not say anything about bruising. (Id. at 201). According to Barlow, she told Dominie to keep his hands off Plaintiff. (Id. at 60). Barlow testified that Plaintiff did not report this incident as sexual harassment and she did not consider it as such. (Id. at 52-53).

Plaintiff states that on numerous occasions from December 2016 to October 2017, she “overheard conversations between Dominie and Stander in which they discussed that they were exchanging sexually explicit text messages and pictures on their cellular phones.” (Dkt. No. 160-4, ¶ 32). Plaintiff testified that she did not recall seeing any of the pornography they exchanged. (Dkt. No. 143-12, at 40, 67). She said that Dominie and Stander “would be talking about pornographic type information,” and “the word dick would be used,” but she could not recall any explicit language used by Stander. (Id. at 67). According to Plaintiff, Dominie and Stander also “engaged in public displays of ‘dry humping' each other.” (Dkt. No. 160-4, ¶ 38). Plaintiff testified that she “witnessed once Mr. Dominie bending Mr. Stander over a desk and dry humping him.” (Dkt. No. 143-12, at 43). Another employee testified that this happened more than once, that Stander laughed, and that he did not tell Dominie to stop. (Dkt. No. 160-6, at 1516). Barlow testified that she witnessed Dominie and Stander engage in “playful wrestling.” (Dkt. No. 143-4, at 78). Stander testified he did not send Dominie any sexually explicit pictures; he said that Dominie “dry humped” him, that he told Dominie to stop, and he denied initiating any such behavior. (Dkt. No. 145-2, at 81-82, 191).

Plaintiff also testified that Dominie showed her sexually explicit pictures, including a picture of his penis, and he viewed pornography on his office computer. (Dkt. No. 143-12, at 40-41). According to Plaintiff, Dominie made explicit, suggestive, degrading, and threatening comments to her, including comments about having sex with her. (Id. at 29, 42-47; see also Dkt. No. 160-4, ¶¶ 40-41).

Steve Cernac, another OPWDD employee, testified that on February 20, 2017, he observed an incident where Dominie told Plaintiff that “she loved it in her ass” and “shooting in her face.” (Dkt. No. 160-5, at 151-54). Cernac also testified that Dominie was being “touchy-feely” with Plaintiff, and “they were kind of grabbing onto one another.” (Id. at 154). Cernac said that he heard a “loud crack,” and Plaintiff indicated that Dominie had smacked her bottom. (Id.; see also Dkt. No 160-6, at 462). Cernac testified that he informed Stander about the incident “verbatim.” (Dkt. No. 160-5, at 156, 168; see also Dkt. No. 160-6, at 462). Cernac said that Stander assured him that the issue had been addressed with Dominie. (Dkt. No. 160-5, at 157). Plaintiff testified that a meeting was held with Barlow, herself, and Dominie, and Dominie “agreed for boundaries.” (Dkt. No. 143-12, at 69, 77). Stander testified that...