Arnold v. Town of Camillus, New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

PATRICIA ARNOLD,

Plaintiff,

vs. 5:20-CV-1364

(MAD/ML)

TOWN OF CAMILUS, NEW YORK; POLICE

CHIEF THOMAS WINN; CAPTAIN JAMES

NIGHTINGALE; TOWN SUPERVISOR MARY

ANN COOGAN; DAVID CALLAHAN; JOY

FLOOD; DICK GRIFFO; STEVEN JAMES;

MIKE LAFLAIR; MARY LUBER; JOHN DOE(S);

and JANE DOE(S), in their individual and

official capacities as officials, officers, agents,

employees, and/or representatives of the Town of

Camilus and/or the Camilus Police Department,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

BOSMAN LAW FIRM, LLC AJ BOSMAN, ESQ.

3000 McConnellsville Road ROBERT J. STRUM, ESQ.

Blossvale, New York 13308

Attorneys for Plaintiff

BOND SCHOENECK & KING, PLLC DAVID M. FERRARA, ESQ.

One Lincoln Center KSENIYA PREMO, ESQ.

Syracuse, New York 13202-1355

Attorneys for Defendants

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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff, Patricia Arnold, filed this action in the Onondaga County Supreme Court, on

October 13, 2020. Dkt. No. 1 at ¶ 1. Plaintiff asserted claims for discrimination on the basis of

her gender and retaliation in violation of 42 U.S.C. § 1983 and the New York State Human Rights

Law against Defendants Town of Camillus, New York; Camillus Police Chief Thomas Winn;

Camillus Police Captain James Nightingale; Town Supervisor Mary Ann Coogan; Camillus Town

Board members David Callahan, Joy Flood, Dick Griffo, Steven James, Mike LaFlair, and Mary

Lubar; John Doe(s); and Jane Doe(s). Dkt. No. 2 at 9-11. Plaintiff also asserted a claim for

intentional or reckless infliction of emotional distress against Defendant Nightingale. Id. at 11.

Lastly, Plaintiff asserted claims for tortious interference and prima facie tort against Defendants

Nightingale and Winn. Id. at 12.

In a July 16, 2021 Memorandum-Decision and Order, the Court remanded all of Plaintiff's

state-law claims to Onondaga County Supreme Court so that she could file a motion for leave to

file a late notice of claim in that Court. This Court retained jurisdiction over Plaintiff's federal

claims and stayed this case pending a decision on Plaintiff's motion in state court. On January 7,

2022, the Onondaga County Supreme Court denied Plaintiff's motion to file a late notice of claim

and dismissed her state-law claims.

On May 3, 2022, Plaintiff filed an amended complaint, which is the operative pleading in

this case. See Dkt. No. 56. In the amended complaint, Plaintiff asserts the following causes of

action: (1) gender discrimination in violation of 42 U.S.C. § 1983 ("Section 1983") against all

Defendants; (2) retaliation in violation of Section 1983 against all Defendants; (3) gender

discrimination in violation of the New York State Human Rights Law ("NYSHRL") against all

Defendants other than the Town; (4) retaliation in violation of the NYSHRL against all

Defendants other than the Town; (5) reckless and/or intentional infliction of emotional distress

against Defendant Nightingale; (6) tortious interference against Defendants Winn and

Nightingale; and (7) prima facie tort against Defendants Winn and Nightingale. See id.

2

Currently before the Court is Defendants' motion to dismiss the amended complaint, with

the exception of the Section 1983 claims against Defendant Nightingale. See Dkt. No. 57.

II. BACKGROUND

Plaintiff, a female, was employed by the Town from April 4, 2011 through August 7,

2019, when she resigned from her position as a police officer with the Town's Police Department.

See Dkt. No. 56 at ¶ 14. Plaintiff claims that, during her employment, she was subjected "to a

campaign of harassment on the basis of her gender and retaliation for her opposition to unlawful

and discriminatory treatment." Id. at ¶ 15.

Beginning in or about 2011, Defendant Nightingale (who was then a sergeant) made

disparaging comments on the basis of Plaintiff's gender, "starting an almost decade-long

campaign of harassment." Id. at ¶ 16. Plaintiff alleges that Defendant Nightingale "continued to

harass Plaintiff in the form of inappropriate and uninvited touching of her arms, shoulders, and

back. This was frequent enough such that Plaintiff was subject to ridicule and Nightingale's

treatment of Plaintiff became a running joke amount coworkers." Id. Additionally, as Plaintiff's

supervisor, Defendant Nightingale subjected Plaintiff to disparate treatment by denying overtime,

instruction, and training opportunities that were afforded to often less-qualified male officers. See

id.

Plaintiff made Chief Thomas Winn aware of Defendant Nightingale's sexual harassment

and discriminatory denial of opportunities during a February 2018 meeting. See id. at ¶ 17. She

expressed fear of retaliation from Defendant Nightingale and declined to file a formal complaint

at that time. See id. Plaintiff told Defendant Winn that it was her hope that he would address

Defendant Nightingale's behavior without her having to make a formal complaint, which he

declined to do. See id.

3

After the February 2018 meeting, Plaintiff claims that she continued to be subjected to a

hostile work environment caused by Defendant Nightingale's treatment. See id. at ¶ 18. Plaintiff

alleges that the inappropriate touching continued and was frequently joked about by coworkers.

See id. In the summer of 2018, Plaintiff was the instructor for a sexual harassment training, but

was only permitted to instruct female secretaries. See id. During this training session, Plaintiff

alleges that Defendant Nightingale "brazenly entered the room, interrupted Plaintiff, and

prematurely ended the instruction." Id. In Plaintiff's experience, male officers were not so

limited in their opportunities to instruct or interrupted in the midst of instruction. See id.

Moreover, Plaintiff claims that, even though Defendant Winn was aware of the

discriminatory treatment of her by Defendant Nightingale, Defendant Winn required her to attend

an August 28, 2018 ceremony to celebrate Defendant Nightingale's promotion to Captain. See id.

at ¶ 19. Plaintiff alleges that this caused her "significant stress and discomfort not only because

Winn knew of Nightingale's behavior towards her from her and others, including Lt. Burlingame,

but also because Winn still gave him a substantial promotion that bypassed the rank of Lieutenant

altogether. The decision to promote Nightingale signaled to Plaintiff that the inappropriate

touching and discrimination would never be addressed; the sexual harassment continued with no

one to complain to." Id.

Plaintiff met with Chief Winn in January 2019 and again reported Defendant Nightingale's

harassment and discrimination. See Dkt. No. 56 at ¶ 20. Plaintiff claims that when she stated her

intention to file a formal complaint of discrimination and harassment, Chief Winn became hostile

and aggravated and that his behavior and demeanor signaled to her that he did not support her and

did not want her to file a complaint. See id.

4

Plaintiff submitted a written statement to Chief Winn on February 6, 2019, recounting six

instances of sexual harassment by Defendant Nightingale and identified three witnesses. See

id. at ¶ 21. Plaintiff claims that Chief Winn was again hostile toward her and "intimidated her

into declining the opportunity to have Town Supervisor Mary Ann Coogan investigate the

allegations instead of himself. He stated to Plaintiff that Town Supervisor Coogan was aware of

Plaintiff's allegations." Id. Plaintiff further alleges that "Defendant Coogan became aware of

Plaintiff's allegations of sexual harassment in 2018 and, upon information and belief, shared this

information with each Defendant Board Member at such time." Id. "Neither Defendant Coogan

nor any of the Defendant Board Members took any action to investigate Plaintiff's allegations or

otherwise protect her from the discriminatory conduct, knowing that they had a duty to do so."

Id. Plaintiff contends that "[s]uch actions constitute a policy, custom and practice of

discrimination and retaliation." Id.

Approximately two weeks later, Defendant Winn met with Plaintiff to inform her that

Defendant Nightingale had acknowledged "he might have done" the reported discriminatory and

harassing behavior. See id. at ¶ 22. Defendant Winn did not speak with any of Plaintiff's

witnesses. See id. Rather, Plaintiff claims that "talking to Nightingale was the beginning and end

of the 'investigation.'" Id. Defendant Winn suggested that Plaintiff could avoid contact with

Defendant Nightingale by reported to Lieutenant Burlingame going forward, "but did little if

anything to discipline the harasser." Id. Defendant Winn allegedly advised Defendant

Nightingale "to keep the allegations private to himself" and asked Plaintiff who else she had

discussed the allegations with. Id. Plaintiff claims that it was "clear that Chief Winn was more

concerned with minimizing the incidents and protecting Nightingale's reputation than protecting

Plaintiff and others from unrelenting sexual harassment and discrimination." Id.

5

Plaintiff claims that the hostile work environment continued as she was forced to continue

working with Defendants Nightingale and Winn with the knowledge that no action would be

taken to protect her from further adverse treatment. See id. at ¶ 23. The associated anxiety

caused her tightness in her chest and insomnia, which ultimately forced her to resign from the

Camillus Police Department on August 8, 2019, "to escape this hostility and protect her health."

Id.1

In July 2019, prior to her resignation, Plaintiff notified PBA President Jay Pollard that she

was leaving the Camillus Police Department due to and as a result of Chief Winn and the

Department's lack of investigation or other adequate response to her complaints about Defendant

Nightingale. See id. at ¶ 25. Thereafter, Mr. Pollard and the PBA Executive Board began

investigating other complaints about Defendant Nightingale's behavior. See id. On March 4,

2020, Mr. Pollard met with Town Supervisor Coogan who was again made explicitly aware of

Plaintiff's harassment complaints and the other complaints uncovered by the PBA's investigation.

See id.

On March 11, 2020, seven months after her resignation, Plaintiff met with Supervisor

Coogan for an "exit interview" at Camillus Town Hall conducted at the request of the PBA. See

Dkt. No. 56 at ¶ 26. Also present at this meeting was Town Board Member Jay Flood. See id. In

1 Defendants have included as an exhibit to their motion to dismiss Plaintiff's July 31,

2019 resignation letter addressed to Defendant Winn. See Dkt. No. 57-2. In this letter, Plaintiff

explains that she has accepted a position with the Syracuse Police Department and apologizes for

"short notice" she was giving. See id. Plaintiff concludes the letter as follows: "I would like to

sincerely convey my appreciation to you and this department as I have had tremendous

experiences and opportunity. I am extremely grateful for the trust and responsibility that you

placed on me as it assisted me in growing as an officer and a person. Thank you for all of your

support and assistance in this law enforcement journey." Id. Since this letter was not attached as

an exhibit to the complaint or integral to it, the Court will not consider the content of this letter in

deciding Defendants' motion to dismiss. See Nielsen v. City of Rochester, 58 F. Supp. 3d 268,

273 (W.D.N.Y. 2014).

6

response to her questioning regarding why Plaintiff left the Department, Plaintiff once again

recounted the harassment she faced, her complaints to Chief Winn, her formal harassment

complaint, and Chief Winn's "subsequent sham 'investigation.'" Id. "Notably, Coogan

acknowledged that she was aware of Plaintiff's original complaint in 2018." Id. Plaintiff further

claims that, "[a]t least three times during this interview, Coogan and Flood attempted to stop

Plaintiff from continuing; they did not genuinely want to know the details of what she had faced

and consistent with the Town's custom and policy ..., sought to suppress Plaintiff from speaking

about and turn a blind eye to sex discrimination and harassment." Id.

On July 13, 2020, due to Town Supervisor Coogan's refusal to meet, "the PBA wrote a

letter demanding the Town Board take action on the substantial misconduct uncovered within

Camillus PD. Coogan, on July 15, met with Pollard and agreed to have an outside firm

investigate these allegations." Id. at ¶ 27. The Town subsequently hired Phillip J. LeRoux of

Affirmed H.R. Consulting, LLC to conduct this investigation. See id. "Upon information and

belief, the hiring of this company to do said 'investigation' was based in large part to this

association and friendship with David Ferrara, Town Attorney." Id.

III. DISCUSSION

A. Standard of Review

Judgment on the pleadings may be granted under Rule 12(c) of the Federal Rules of Civil

Procedure "where material facts are undisputed and where a judgment on the merits is possible

merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842

F.2d 639, 642 (2d Cir.1988). "In deciding a Rule 12(c) motion, we apply the same standard as

that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the

complaint as true and drawing all reasonable inferences in favor of the nonmoving party."

7

Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); see also Bank of N.Y. v. First Millennium,

Inc., 607 F.3d 905, 922 (2d Cir. 2010).

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.

Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal

sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all

reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493

F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not

extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Although a court's review of a motion to dismiss is generally limited to the facts presented in the

pleading, the court may consider documents that are "integral" to that pleading, even if they are

neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v.

Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d

147, 152-53 (2d Cir. 2002)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the

claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is

entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).

Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief

above the speculative level," see id. at 555 (citation omitted), and present claims that are

"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability

requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."

Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely

consistent with' a defendant's liability, it 'stops short of the line between possibility and

8

plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).

Ultimately, "when the allegations in a complaint, however true, could not raise a claim of

entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims

across the line from conceivable to plausible, the[ ] complaint must be dismissed[,]" id. at 570.

B. Monell Liability

Defendants contend that the Section 1983 claims against the Town of Camillus (the

"Town") must be dismissed because Plaintiff has failed to sufficiently plead that the Town

maintained any policy or custom which deprived her of equal protection under the law. See Dkt.

No. 57-3 at 12. Defendants argue that Plaintiff's attempt to cure her prior pleading deficiencies

by including a number of "examples" of the Town's allegedly discriminatory customs, policies,

and practices is insufficient, since the complaint is "remarkably devoid of specificity" and the

examples are "riddled with speculation and lack factual amplification." Id. at 12-13. In response,

Plaintiff contends that the amended complaint expressly alleges that the Town "'has a custom,

practice and policy of discrimination against women'" and that this unconstitutional policy was

the proximate cause of her injuries. See Dkt. No. 59 at 11 (quoting Dkt. No. 56 at ¶ 34). Further,

Plaintiff maintains that the examples provided in the amended complaint clearly demonstrate the

existence of a such a policy and that they are sufficient to satisfy the third and fourth prongs of

establishing Monell liability. See id. at 11-16.

To establish a municipal liability claim, "a plaintiff is required to plead and prove three

elements: '(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a

denial of a constitutional right.'" Lucente v. County of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020)

(quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)); see also Frost v. N.Y.C.

Police Dep't, 980 F.3d 231, 257 (2d Cir. 2020). A plaintiff can establish an official policy or

9

custom by showing any of the following: (1) a formal policy officially endorsed by the

municipality; (2) actions or decisions made by municipal officials with decision-making

authority; (3) a practice so persistent and widespread that it constitutes a custom of which

policymakers must have been aware; or (4) a failure by policymakers to properly train or

supervise their subordinates, such that the policymakers exercised "deliberate indifference" to the

rights of the plaintiff and others encountering those subordinates. See Iacovangelo v. Corr. Med.

Care, Inc., 624 Fed. Appx. 10, 13-14 (2d Cir. 2015) (formal policy officially endorsed by the

municipality); Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread

and persistent practice); Carter v. Inc. Village of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014)

(failure to train amounting to deliberate indifference); Jones v. Town of East Haven, 691 F.3d 72,

81 (2d Cir. 2012) (policymaking official's "express" or "tacit" ratification of low-level employee's

actions); see also Hansen v. Watkins Glen Cent. Sch. Dist., 832 Fed. Appx. 709, 715 (2d Cir.

2020) (affirming the district court's finding that the defendant's "restricted access to school

property on only four other occasions in the more than ten years he served as a [s]uperintendent"

did not amount to a custom or policy). "Deliberate indifference is not demonstrated on every

occasion that a plaintiff has reported potential rights violations to a policymaker: rather,

constitutionally cognizable deliberate indifference is a 'stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious consequence of his action.'" O'Kane v.

Plainedge Union Free Sch. Dist., 827 Fed. Appx. 141, 143 (2d Cir. 2020) (quoting Bd. of County

Comm'rs v. Brown, 520 U.S. 397, 410 (1997)).

"[U]nder Monell municipal liability for constitutional injuries may be found to exist even

in the absence of individual liability, at least so long as the injuries complained of are not solely

attributable to the actions of named individual defendants." Barrett v. Orange Cnty. Hum. Rights

10

Comm'n, 194 F.3d 341, 350 (2d Cir. 1999); see also Rutigliano v. City of New York, 326 Fed.

Appx. 5, 9 (2d Cir. 2009). "[E]ven in situations where the acts or omissions of individual

employees do not violate an individual's constitutional rights, 'the combined acts or omissions of

several employees acting under a governmental policy or custom may violate' those rights."

Barrett, 194 F.3d at 350 (quotations omitted). In addition, where "the individual defendants

violated plaintiff's rights but nonetheless enjoy qualified immunity," a plaintiff can pursue a

Monell claim. Bonilla v. Jaronczyk, 354 Fed. Appx. 579, 582 (2d Cir. 2009) (citing Curley v.

Village of Suffern, 268 F.3d 65, 71 (2d Cir. 2001)).

1. Municipal Policy or Custom

In the amended complaint, Plaintiff sets forth the following allegations in support of

Monell liability:

35. Defendant Town disqualified and refused to hire, on

different occasions over the course of approximately ten

(10) years, six (6) female applicants without basis in favor

of fifteen (15) less qualified male applicants. Plaintiff

learned that Defendants' false excuse for not hiring some or

all of these women was due to their "background," yet each

was thereafter hired by other law enforcement agencies.

36. Defendant Town denied Plaintiff's two (2) requests to attend

"street survival school" training while selecting

approximately eight (8) men instead, some of whom had

less seniority than Plaintiff.

37. Defendant Town ignored Plaintiff's requests, made to

Defendant Nightingale, for permission to attend training

sponsored by Federal/State law enforcement organizations,

including an FBI negotiator instruction school. Upon

information and belief, male officers are routinely permitted

to attend similar training programs.

38. Defendant Town selected a male sergeant over a female

sergeant for promotion to lieutenant. After the female

sergeant complained that her non-selection was

discriminatory, she was assigned as a "Staff Sergeant," a

11

position that had been previously eliminated. Upon

information and belief, the female sergeant was given this

position to avoid scrutiny of the male officer's promotion.

39. Upon information and belief, Defendant Town disregarded a

female employee's complaint that Chief Winn was

subjecting her to harassment because she became intimately

involved with a male officer. After learning of the

relationship, Winn extended the female employee's

probation without basis and subjected her to undue scrutiny

of her private life. Winn does not subject male employees

to similar scrutiny. The employee complained to Defendant

Coogan regarding Winn's behavior and Coogan disregarded

the complaint.

40. Defendant Town treats serious misconduct of male officers

with tolerance. For example, a male officer was given a

"slap on the wrist" after he was involved in an off-duty

physical altercation. This male officer's conduct was

particularly egregious and required the intervention of an

outside law enforcement agency. The male officer

reportedly used a racial slur during the incident.

Notwithstanding the serious nature of the male officer's

misconduct, his employment was retained by the Town. By

contrast, Defendant Town imposes stricter scrutiny for

alleged misdeeds by female officers. Defendant Town

issued a counseling memo to Plaintiff. Plaintiff disputed its

accuracy, requested its removal, and was assured by

Defendant Winn that it would be removed. When she

reviewed her personnel file a year later, it remained in her

file. Other than this counseling memo, Plaintiff had a clean

disciplinary record. Upon information and belief, had such

a counseling memo been issued to a male officer it would

have been purged.

Dkt. No. 56 at ¶¶ 35-40. Plaintiff argues that these allegations, along with those that specifically

relate to Plaintiff, are sufficient to set forth a Monell claim. See Dkt. No. 59 at 12-13.

In the present matter, the Court finds that Plaintiff has failed to plausibly allege that the

Town maintained a policy or custom which deprived her of equal protection under the law.

Plaintiff has not identified any formal town policy that has deprived her of equal protection and,

while the allegedly discriminatory policy or practice need not be formally memorialized, in order

12

to establish the existence of a municipal policy or custom for purposes of Section 1983 Plaintiff

must demonstrate that the Town has a "persistent and widespread" practice that is "so permanent

and well settled as to constitute a 'custom or usage' with the force of law." Ruiz v. City of New

York, No. 14-cv-5231, 2015 WL 5146629, *11 (S.D.N.Y. Sept. 2, 2015). The allegations in the

amended complaint fall short of this high standard.

As mentioned above, Plaintiff provides "examples" of the Town's allegedly discriminatory

customs, policies, and practices, but the amended complaint is still devoid of specificity. Initially,

Plaintiff alleges that the Town maintains a practice and policy of not hiring women insofar as it

"refused to hire" six unnamed female applicants over a period of ten years in favor of fifteen

unnamed male applicants. See Dkt. No. 56 at ¶ 35. Plaintiff fails to provide details as to who

these male and female applicants were, when they applied for a position with the Town, what the

position was, or who was involved in the allegedly discriminatory hiring practice. This

conclusory allegation is too lacking in detail "to nudge plaintiff['s] claims across the line from

conceivable to plausible," and is therefore insufficient to support her claim. See Haggood v.

Rubin & Rothman, LLC, No. 14-cv-34, 2014 WL 6473527, *11-12 (E.D.N.Y. Nov. 17, 2014)

(citing cases where alleging facts "upon information and belief" was insufficient to support

Monell liability against the municipal defendant on the plaintiffs' Equal Protection claim).

Moreover, accepting Plaintiff's allegations as true as the Court must on a motion to dismiss, the

failure to hire six female applicants over a period of ten years is insufficient to establish a policy,

pattern or practice of the kind required to state a claim for municipal liability. See Durr v. Slator,

558 F. Supp. 3d 1, 36 (N.D.N.Y. 2021). Moreover, Plaintiff offers no facts tending to suggest

that these unnamed applicants were not hired because of their sex. See Kajoshaj v. City of New

13

York, No. 11-cv-4780, 2013 WL 249408, *3 (E.D.N.Y. Jan. 23, 2013), aff'd, 543 Fed. Appx. 11

(2d Cir. 2013).

Plaintiff also alleges that the Town denied her requests to attend certain training programs,

including a street survival program and federal and state law enforcement training. See Dkt. No.

56 at ¶¶ 36-37. Again, Plaintiff merely alleges that "upon information and belief" male officers

were permitted to attend similar training and this kind of conclusory allegation is insufficient to

support her claim. See Haggood, 2014 WL 6473527, at *12 ("Since all of plaintiffs' allegations,

made 'upon information and belief,' pertaining to the treatment of non-African American

employees received at [defendant-employer] are entirely conclusory, they are not entitled to the

assumption of truth and are insufficient to withstand a motion to dismiss") (citations omitted);

Kajoshaj, 543 Fed. Appx. at 15 (affirming dismissal of the plaintiffs' equal protection claims

where the plaintiffs pled "upon information and belief that the [defendant] promoted to sixth

grade 'non-Muslim students from families of non-Albanian origin' who had test scores and grades

similar to [the plaintiffs' chid]"). Moreover, as Defendants correctly note, assuming these discrete

denials of Plaintiff's requests for particular training did occur, they are insufficient to plausibly

allege a Town policy, practice, or custom of disparate treatment on the basis of sex. See Dotson

v. City of Syracuse, No. 5:18-cv-750, 2019 WL 2009076, *10-11 (N.D.N.Y. May 7, 2019)

(dismissing the plaintiff's Monell claim based against the municipal defendant where the plaintiff

alleged a pervasive practice of "discriminatory hiring, discipline, lack of promotion, retaliation,

and disparate treatment of women and minority employees of the City of Syracuse Police

Department," finding this conclusory allegation insufficient despite the defendant Chief of

Police's knowledge of this alleged practice, where the plaintiff fail to allege facts supporting the

alleged pervasive and widespread practice and custom).

14

Plaintiff also broadly asserts that female officers are subjected to greater scrutiny and

more severe discipline than male officers. See Dkt. No. 56 at ¶¶ 39 & 40. In support of the vague

comparisons she attempts to draw, Plaintiff alleges that "[Chief] Winn does not subject male

employees to similar scrutiny" and "Defendant Town treats serious misconduct of male officers

with tolerance." Id. Such bald assertions are insufficient to support her equal protection claim

against the Town. See Kajoshaj, 543 Fed. Appx. at 16. Similarly, Plaintiff references a

counseling memorandum she received and asserts "upon information and belief" that "had such a

counseling memo been issued to a male officer it would have been purged" from his personnel

file. See Dkt. No. 56 at ¶ 40. This allegation – which is the height of speculation – is insufficient

to support her Section 1983 municipal liability claim. See D.F. ex rel. Finkle v. Bd. of Educ. of

Syosset Cent. Sch. Dist., 386 F. Supp. 2d 119, 128 (E.D.N.Y. 2005), aff'd, 180 Fed. Appx. 232 (2d

Cir. 2006) (holding that the plaintiff's "allegations of selective treatment [were] wholly

conclusory ... [and] insufficient to defeat a motion to dismiss" where the plaintiff alleged "upon

information and belief" that other students "who engaged in similar or more severe conduct ...

received suspensions of a lesser duration" than he did).

The "examples" that Plaintiff includes in the amended complaint are insufficient to nudge

Plaintiff's municipal liability claim from conceivable to plausible. Accordingly, the Court finds

that Plaintiff has failed to plausibly allege a custom or policy that could support Monell liability.

2. Deliberate Indifference by a Municipal Policymaker

Plaintiff also contends that Defendants Winn and Coogan, as municipal policymakers,

were deliberately indifferent to the constitutional deprivations she was subjected to. See Dkt. No.

59 at 15-16.

15

Although Plaintiff's amended complaint is generally light on specifics, including the

names of any individual involved or the dates of these alleged incidents, the Court finds that, at

this stage, Plaintiff has plausibly alleged Monell liability. Defendant Winn, as the Camillus

Police Chief, was clearly a policymaker. In the amended complaint, Plaintiff alleges that she met

with Defendant Winn in February 2018 and complained of Defendant Nightingale's sexual

harassment and discriminatory denial of opportunities. See Dkt. No. 56 at ¶ 17. Although

Plaintiff declined to file a formal complaint at that time because she feared retaliation, "Plaintiff

told Winn that it was her hope that he would address Nightingale's behavior without her having to

make a formal complaint," which he declined to do. See id.

Plaintiff further alleges that, after this meeting and Defendant Winn's inaction, she

continued to be subjected to a hostile work environment caused by Defendant Nightingale's

treatment. See id. at ¶ 18. The inappropriate touching continued and was joked about by

coworkers. See id. Despite this knowledge, Defendant Winn promoted Defendant Nightingale to

the rank of Captain in August 2018, making him in charge of Internal Affairs and responsible for

investigating claims of harassment. See id. at ¶ 19. During the January 2019 meeting, Defendant

Winn became upset when Plaintiff stated her intention to file a formal complaint against

Defendant Nightingale and signaled to her that he did not want her to file a formal complaint. See

id. at ¶ 20. Finally, on February 6, 2019, Plaintiff submitted a written statement to Defendant

Winn recounting six instances of sexual harassment by Defendant Nightingale and identified

three witnesses. See id. at ¶ 21. Defendant Winn again became agitated and declined Plaintiff's

suggestion of having Defendant Coogan investigate the allegations instead of himself. See id.

"Approximately two weeks later, Winn met with Plaintiff to inform her that Nightingale had

acknowledged 'he might have done' the reported discriminatory and harassing behavior." Id.

16

Defendant Winn, however, did not speak with Plaintiff's witnesses and it was clear that the

discussion with Defendant Nightingale was the entire investigation. See id. at ¶ 22.

Although the Court believes that this case presents a close call, the Court finds that the

amended complaint plausibly alleges that Defendant Winn, as a municipal policymaker, had

actual notice of "a pattern of constitutionally offensive acts" by Defendant Nightingale, but failed

to take remedial steps in response. See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983);

see also SB on behalf of AB v. Newark Cent. Sch. Dist., No. 6:21-cv-6138, 2022 WL 541773, *8

(W.D.N.Y. Feb. 23, 2022) (holding that the plaintiff plausibly alleged an equal protection claim

against the municipal defendants where the complaint alleged that officials had actual notice of

the individual defendants pattern of sexual harassment of students yet failed to properly

investigate the allegations); Benacquista v. Spratt, 217 F. Supp. 3d 588, 601-02 (N.D.N.Y. 2016)

(holding that the plaintiff plausibly alleged an equal protection claim against the municipal

defendant where she alleged that the policymaking officials failed to take any meaningful

corrective or preventative actions despite being warned on multiple occasions of the individual

defendant's improper and increasingly sexualized misconduct). As such, the Court denies

Defendants' motion to dismiss Plaintiff's Monell claims against the Town.

C. Section 1983 Claims Against the Individual Defendants

Defendants seek dismissal of Plaintiff's Section 1983 claims against the Individual

Defendants, with the exception of Defendant Nightingale, arguing that they were not personally

involved in the alleged unconstitutional conduct. See Dkt. No. 57-3 at 16-22.

It is well settled that "'personal involvement of defendants in alleged constitutional

deprivations is a prerequisite to an award of damages under § 1983.'" Breton v. City of New York,

404 F. Supp. 3d 799, 812 (S.D.N.Y. 2019) (quoting Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.

17

2010)). Thus, "a plaintiff must 'allege a tangible connection between the acts of a defendant and

the injuries suffered.'" Beauchine v. City of Syracuse, New York, No. 5:21-cv-845, 2022 WL

561548, *15 (N.D.N.Y. Feb. 24, 2022) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.

1986)).

Before the Supreme Court's Iqbal decision, the Second Circuit identified five categories of

evidence to show the personal involvement of a supervisory defendant:

(1) the defendant participated directly in the alleged constitutional

violation, (2) the defendant, after being informed of the violation

through a report or appeal, failed to remedy the wrong, (3) the

defendant created a policy or custom under which unconstitutional

practices occurred, or allowed the continuance of such a policy or

custom, (4) the defendant was grossly negligent in supervising

subordinates who committed the wrongful acts, or (5) the defendant

exhibited deliberate indifference to the rights of inmates by failing

to act on information indicating that unconstitutional acts were

occurring.

Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995). However, this standard was called into question

when the Supreme Court precluded special standards for supervisory liability under 42 U.S.C. §

1983. See Iqbal, 556 U.S. at 676-77. The Supreme Court made clear that "a plaintiff must plead

that each government-official defendant, through the official's own individual actions, has

violated the Constitution." Id. at 676. The Court reasoned that the showing of culpability

required to hold a supervisory government official liable for a constitutional violation can be no

less than is required for anyone else charged with the same violation. See id. at 676-77. The

Supreme Court reemphasized that a government official, "his or her title notwithstanding, is only

liable for his or her own misconduct" and rejected the claim that "a supervisor's mere knowledge

of his subordinate's discriminatory purpose amounts to the supervisor's violating the

Constitution." Id.

18

The Second Circuit recently clarified the standard to be applied to a claim of supervisory

liability in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020). In that case, the plaintiff alleged

that she was sexually abused by correction officers in prison. See Tangreti, 983 F.3d at 612. She

brought suit under Section 1983 against eight prison supervisors, including a supervising

counselor at the correctional institute who oversaw a substance abuse program, alleging that they

violated the Eighth Amendment through their deliberate indifference to the substantial risk of

sexual abuse by three corrections officers. The district court denied the supervising counselor's

motion for summary judgment, finding she was "conceivably personally involved" in violations

against the plaintiff because she "was grossly negligent in supervising the officers or because she

failed to act on information indicating that Tangreti was at substantial risk of sexual abuse."

Tangreti v. Semple, No. 3:17-cv-1420, 2019 WL 4958053, *19 (D. Conn. Oct. 8, 2019).

The Second Circuit rejected that conclusion and reversed. The court noted that after

Iqbal, there can be no "special rule for supervisory liability" — rather, as the Supreme Court

made clear, each supervisor must have, through his or her own individual actions, violated the

constitution. Id. at 612. "The focus is on what the supervisor did or caused to be done, 'the

resulting injury attributable to his conduct, and the mens rea required of him to be held liable,

which can be no less than the mens rea required of anyone else.'" Tangreti, 983 F.3d at 618

(quoting Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010)) (emphasis in original).

Applying this principle, the court concluded that the plaintiff had not adduced sufficient evidence

to support an inference that the defendant supervising counselor, personally and "through her own

actions, displayed deliberate indifference to the substantial risk of sexual abuse." Id. As the court

noted, "for deliberate-indifference claims under the Eighth Amendment against a prison

supervisor, the plaintiff must plead and prove that the supervisor had subjective knowledge of a

19

substantial risk of serious harm to an inmate and disregarded it." Id. at 616 (citing Farmer v.

Brennan, 511 U.S. 825, 837 (1994)). Put another way, for a supervisory official to be liable, the

official must "personally" know of and disregard "an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference." Id. at 619 (quoting Vega v.

Semple, 963 F.3d 259, 273 (2d Cir. 2020)).2 Additionally, while knowledge of a substantial risk

of harm in an Eighth Amendment claim may be sufficient to establish a supervisor's personal

involvement, "it is not necessarily sufficient to impose liability in a discrimination/retaliation

case." Miller v. Carroll, No. 3:21-cv-14, 2022 WL 903283, *12 (D. Conn. Mar. 28, 2022).

1. Chief Winn

Defendants contend that Plaintiff has failed to allege the personal involvement of

Defendant Winn. See Dkt. No. 57-3 at 17-18. Specifically, Defendants claim that Plaintiff is

attempting to rely on a theory of supervisory liability specifically rejected in Tangreti –

specifically, that Defendant Winn failed to adequately supervise and/or correct Defendant

Nightingale's conduct. See id. In response, Plaintiff argues that she has adequately alleged that

Defendant Winn intentionally failed to act on her complaints because of his own gender bias. See

Dkt. No. 59 at 17-18.

In the present matter, the Court finds that Plaintiff has failed to plausibly allege that

Defendant Winn was personally involved in the alleged discriminatory conduct. Plaintiff does

2 The Second Circuit also cited favorably the Eighth Circuit decision of Nelson v. Corr.

Med. Servs., 583 F.3d 522, 534-35 (8th Cir. 2009) (en banc), which held as follows: "In a § 1983

case an official 'is only liable for his ... own misconduct' and is not 'accountable for the misdeeds

of [his] agents' under a theory such as respondeat superior or supervisory liability. ... [The

official] is thus only liable if he personally displayed deliberate indifference to the [relevant]

hazards."

20

not allege that he was personally involved in any decision to deny her opportunities afforded to

less qualified male officers. Rather, the amended complaint specifically alleges that "[Defendant]

Nightingale subjected Plaintiff to disparate treatment by denying overtime, instruction, and

training opportunities that were afforded to often less-qualified male officers." Dkt. No. 56 at ¶

16. Plaintiff simply alleges that she made Defendant Winn aware of the alleged sexual

harassment and denial of opportunities and that he failed to take appropriate corrective action.

See id. at ¶ 17. Following Tangreti, these allegations are insufficient to demonstrate Defendant

Winn's personal involvement in the alleged discriminatory conduct. See Peck v. Cnty. of

Onondaga, New York, No. 5:21-cv-651, 2021 WL 3710546, *11 (N.D.N.Y. Aug. 19, 2021)

(holding that the plaintiff's allegations that Undersheriff Cassalia failed to remedy discriminatory

practices that the plaintiff raised during a meeting and his dismissal of a complaint regarding a

discriminatory act perpetrated by another are insufficient to allege his personal involvement in the

alleged discrimination and retaliation); Stoutenger v. City of Fulton, ___ F. Supp. 3d ___, 2022

WL 1909918, *15 (N.D.N.Y. 2022) (holding that the plaintiff's allegations that the mayor "'has

been and continues to be deliberately indifferent to the ongoing unconstitutional acts described

herein and grossly negligent in supervising those under her who also subjected Plaintiff to illegal

gender discrimination'" is insufficient to allege the mayor's personal involvement in the

discriminatory and retaliatory conduct); Fellah v. City Univ. of New York, No. 20-cv-6423, 2022

WL 4619902, *6 (S.D.N.Y. Sept. 30, 2022) (holding that the plaintiff failed to plausibly allege

the personal involvement of the supervisor defendant in the alleged hostile work environment

where his allegations simply established that the supervisor defendant failed to take sufficient

action to remedy the plaintiff's work situation and the plaintiff failed to allege that the supervisor

defendant did anything to actively create the hostile work environment); Quinones v. City of

21

Binghampton, No. 19 Civ. 1460, 2022 WL 43764, *5 (N.D.N.Y. Jan. 5, 2022) (holding that the

allegation that the defendant "'failed to take any ameliorative action,' after receiving notice of

pervasive racism" was insufficient to demonstrate personal involvement).

In her amended complaint, Plaintiff claims that when she reported the alleged

discriminatory treatment to Defendant Winn on February 6, 2019, he was "again hostile toward

her and intimidated her into declining the opportunity to have Town Supervisor Mary Ann

Coogan investigate the allegations instead of himself." Dkt. No. 56 at ¶ 21. Plaintiff argues that

such allegations are sufficient to demonstrate Defendant Winn's personal involvement. The Court

disagrees. This conclusory allegation regarding Defendant Winn's alleged hostility towards her is

insufficient to demonstrate Defendant Winn's personal involvement in the underlying

discriminatory conduct or to independently demonstrate that he created a hostile work

environment. See Wilson v. Hanrahan, 804 Fed. Appx. 58, 62 (2d Cir. 2020) (holding that the

plaintiff's Section 1983 hostile work environment claim against the plaintiff's supervisor was

properly dismissed in part because it was unclear what discriminatory events had been reported to

the supervisor, and the supervisor's own conduct was not sufficient to create a hostile work

environment despite multiple remarks from the supervisor).

Accordingly, the Court finds that Plaintiff has failed to plausibly allege that Defendant

Winn was personally involved in the alleged unconstitutional conduct and grants this aspect of

Defendants' motion to dismiss.

2. Town Supervisor Coogan

Defendants also contend that Plaintiff's Section 1983 claims against Defendant Coogan

must be dismissed because Plaintiff has failed to plausibly allege her personal involvement in the

alleged unconstitutional conduct. See Dkt. No. 57-3 at 19-20. In response, Plaintiff contends that

22

she has plausibly alleged that Defendant Coogan "intentionally failed to act on Plaintiff's

complaints because of her own gender bias" and that she was aware of Plaintiff's complaints in

2018 and 2019. See Dkt. No. 59 at 18-19.

As with Defendant Winn, the allegations against Defendant Coogan are insufficient to

demonstrate her personal involvement. Plaintiff does not allege that she ever spoke directly with

Defendant Coogan while she was employed by the Town regarding the alleged harassment by

Defendant Nightingale. Rather, Plaintiff simply vaguely alleges that Defendant Coogan was

aware of the alleged harassment while it was occurring, and that Defendant Winn declined

Plaintiff's offer in her February 6, 2019 letter to Defendant Winn to have Defendant Coogan

investigate the claims in the letter. See Dkt. No. 56 at ¶ 21. The only non-conclusory allegations

relating to Defendant Coogan are that on March 4, 2020, Mr. Pollard met with her to discuss the

results of his investigation and that on March 11, 2020, Plaintiff met with her for an "exit

interview." Id. at ¶¶ 25-26. Both of these events, however, occurred nearly seven (7) months

after Plaintiff resigned from her position with the Town. These allegations fall far short of

establishing Defendant Coogan's personal involvement in the alleged unconstitutional conduct.

Accordingly, the Court grants Defendants' motion to dismiss as to the Section 1983 claims

against Defendant Coogan.

3. The Town Board Members

Defendants similarly argue that Plaintiff's amended complaint fails to plausibly allege the

personal involvement of the Town Board Members. See Dkt. No. 57-3 at 20-21. The Court

agrees.

In the amended complaint, Plaintiff alleges that "Defendant Coogan became aware of

Plaintiff's allegations of sexual harassment in 2018 and, upon information and belief, shared this

23

information with each Defendant Board Member at such time. Neither Defendant Coogan nor

any of the Defendant Board Members took any action to investigate Plaintiff's allegations or

otherwise protect her from the discriminatory conduct, knowing that they had a duty to do so."

Dkt. No. 56 at ¶ 21. Plaintiff fails to articulate what information was relayed to each Board

Member, let alone when, where, and how such information was shared with them. This

allegations is clearly insufficient to plausibly allege the Town Board Members personal

involvement in the alleged discriminatory conduct. Moreover, the amended complaint fails to

plausibly allege that the Town Board Members' alleged misconduct was motivated by an

impermissible intent to discriminate on the basis of Plaintiff's gender. See Rys v. Grimm, No.

6:19-cv-1251, 2021 WL 6277298, *9 (N.D.N.Y. Aug. 12, 2021) (dismissing the plaintiff's Section

1983 claims against the defendant school board members where the plaintiff failed to allege

"anything indicating that they were personally involved in any conduct leading up to such

termination from which the Court could reasonably infer that their decision to terminate her was

tainted by a gender discriminatory motive").

Finally, Plaintiff's Section 1983 claims against the Town Board Members fail for the

additional reason that she has engaged in impermissible group pleading, offering nothing to

specifically indicate the extent of any individual Board Member's involvement in the complained-

of unconstitutional conduct. "As a corollary to the personal-involvement rule, complaints that

rely on 'group pleading' and 'fail to differentiate as to which defendant was involved in the alleged

unlawful conduct are insufficient to state a claim.'" Wilson v. Cnty. of Ulster, No. 1:20-cv-104,

2022 WL 813958, *7 (N.D.N.Y. Mar. 17, 2022) (quotation and other citations omitted).

Accordingly, the Court grants Defendants' motion to dismiss as to Plaintiff's Section 1983

claims against the Town Board Members.

24

D. The NYSHRL Claims

In the third and fourth causes of action, Plaintiff alleges that the individual Defendants

discriminated and retaliated against her in violation of the NYSHRL. See Dkt. No. 56 at ¶¶ 50-

55. Defendants note that, after extensive motion practice before this Court and the New York

State Supreme Court, Plaintiff's NYSHRL claims against the Town were dismissed with prejudice

due to Plaintiff's failure to serve a notice of claim as required by Town Law § 67. Defendants

argue that Plaintiff's failure to serve a notice of claim is also fatal to her NYSHRL and tort law

claims against the individual Defendants in their official capacities. See Dkt. No. 57-3 at 23-25.

Defendants also claim that the NYSHRL claims must be dismissed against the individual

Defendants in their individual capacities because the notice of claim requirement in General

Municipal Law § 50-e is applicable to defendants sued in their personal capacities when a

municipality has "a statutory obligation to indemnify such person." Id. at 23. Defendants argue

that since Section 3.2 of the Town's Municipal Code provides for the indemnification of Town

employees acting within the scope of their employment, the failure to file a notice of claim is fatal

to this claim. See id. at 23-24. In response, Plaintiff initially argues that the "New York Court of

Appeals has expressly held that New York's general Notice of Claim statute, i.e., General

Municipal Law § 50-e, does not apply to employment discrimination claims brought pursuant to

the Human Rights Law as they are not torts" and, therefore the Court should deny Defendants'

motion. See Dkt. No. 59 at 21.3 Additionally, Plaintiff claims that Town Law § 67 does not apply

3 This is an interesting position considering that this Court previously rejected this very

argument in deciding the motion to remand since this action is governed by Town Law § 67. See

Arnold v. Town of Camillus, New York, No. 5:20-cv-1364, 2021 WL 326886, *4-5 (N.D.N.Y.

Feb. 1, 2021) (rejecting Plaintiff's argument that the Court of Appeals decision in Margerum v.

City of Buffalo, 24 N.Y.3d 721 (2015) determined that a notice of claim is no longer required in

employment discrimination claims brought against a town). Moreover, if this argument was

(continued...)

25

to employees or agents of a town and, therefore, does not apply to the individual Defendants. See

id. Next, Plaintiff argues in the alternative that the Town is not under an obligation to indemnify

the individual Defendants in this action because the amended complaint alleges that they were

acting with an unlawful discriminatory purpose. See id. at 21-22.

Section 67 of the New York State Town Law provides as follows:

1. Any claim including a claim specified in section sixty-five-a of

this chapter which may be made against the town or town

superintendent of highways for damages for wrong or injury to

person or property or for the death of a person, shall be made and

served in compliance with section fifty-e of the general municipal

law.

2. Every action upon such claim shall be commenced pursuant to

the provisions of section fifty-i of the general municipal law.

3. This section shall not apply to actions upon claims for damages

or compensation for property taken by condemnation for any public

purpose.

N.Y. Town Law § 67. "[I]n a federal court, state notice-of-claim statutes," like those contained in

Town Law § 67 and General Municipal Law §§ 50-e and 50-i, "apply to state-law claims." Hardy

v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir.1999) (emphasis omitted). This

notice of claim requirement is "construed strictly by New York state courts," and a "[f]ailure to

comply with these requirements ordinarily requires a dismissal for failure to state a cause of

action." Id. at 793-94 (internal quotation marks omitted).

Here, the case law is clear that "injury to person" that Town Law § 67 contemplates

includes employment discrimination claims brought pursuant to Executive Law § 296. See Croci

v. Town of Haverstraw, 175 F. Supp. 3d 373, 389 (S.D.N.Y. 2016) (citing cases). Town Law § 67

3(...continued)

correct, Plaintiff would still have a NYSHRL claim against the Town, which she does not because

of her failure to file a notice of claim.

26

does not have its own separate notice requirement, but instead expressly states that "[e]very

action" brought against a town "shall be commenced pursuant to the provisions of section fifty-i

of the general municipal law," N.Y. Town Law § 67(2), and further states that the claim "shall be

made and served in compliance with section fifty-e of the general municipal law." N.Y. Town

Law § 67(1).

General Municipal Law § 50-e provides that a notice of claim is not required where an

action names an officer, appointee or employee of a public corporation, rather than the public

corporation itself. See N.Y. Gen. Mun. Law § 50-e(1)(b). However, a notice of claim is required

if the public corporation is obligated to indemnify the individual. See id.; see also Zwecker v.

Clinch, 279 A.D.2d 572, 573 (2d Dep't 2001) (noting that "the provisions of General Municipal

Law § 50-e apply to claims against individual defendants only if a municipality is obligated to

indemnify them") (citing Int'l Shared Servs., Inc. v. County of Nassau, 222 A.D.2d 407, 408 (2d

Dep't 1995)). "The obligation to indemnify depends upon whether the individual defendants were

acting within the scope of their employment when they committed the alleged misdeeds."

Zwecker, 279 A.D.2d at 573 (finding that the plaintiff's claims were precluded where the plaintiff

failed to file a notice of claim with respect to claims brought against municipal employees and

offered no evidence that the employees were acting outside the scope of their employment)

(citation omitted). Compliance with Town Law § 67 and General Municipal Law § 50-e is

therefore required where a plaintiff seeks to bring a cause of action for damages against a town

official in his or her official capacity. See W.E. Rest, Inc. v. Wilson, 38 A.D.3d 762, 763 (2d

Dep't 2007).

Although some cases have found that no notice of claim is required when a municipal

employee is sued in his or her individual capacity under Executive Law § 296, see, e.g., Drees v.

27

County of Suffolk, No. 06-cv-3298, 2007 WL 1875623, *14 (E.D.N.Y. June 27, 2007) (citing

cases), those cases do not involve situations in which the municipal employer is required to

indemnify the employee defendant. See id.; see also Perez v. Cnty. of Rensselaer, New York, No.

1:14-cv-950, 2018 WL 3420014, *3 (N.D.N.Y. July 13, 2018). As New York General Municipal

Law § 50-e(1)(b) and other cases more specifically state, "no notice of claim is required for suits

brought again municipal employees unless the municipality is obligated by law to indemnify such

employee." Pierce v. Netzel, No. 98-CV-532, 2004 WL 1055959, *16 (W.D.N.Y. May 10, 2004)

(citing N.Y. Gen. Mun. Law 50-e(1)(b); Zwecker, 279 A.D.2d at 573); see also Van Cortlandt v.

Westchester County, No. 07-CV-1783, 2007 WL 3238674, *7 (S.D.N.Y. Oct. 31, 2007).

The municipality's obligation to indemnify depends on whether the individual defendant

was acting within the scope of his employment when he committed the alleged illegal acts. See

Van Cortlandt, 2007 WL 3238674, at *7. Although such a determination is typically a question

of fact, the Court may decide "this question as a matter of law where the plaintiff's allegations

regarding an individual defendant are limited to conduct that occurred within the scope of

employment." Id. (citations omitted). Where the individual defendant is alleged to have acted

wrongfully during the discharge of his duties, such acts are said to have occurred within the scope

of employment. See McCormack v. Port Washington Union Free Sch. Dist., 214 A.D.2d 546,

546-47 (2d Dep't 1995) (citations omitted).

In the present matter, under the title "Indemnification," Section 3.2 of the Town's

Municipal Code provides that "the Town shall provide for the defense of the officer or employee

in any civil action or proceeding in any State or federal court arising out of any alleged act or

omission which occurred or is alleged i[n] the complaint to have occurred while the officer or

employee was acting or in good faith purporting to act within the scope of his or her public

28

employment duties." See Camillus Municipal Code, Ch. 3, Art. I, § 3.2; see also N.Y. Pub. Off.

Law § 18 (providing for the defense and indemnification of, among others, employees of towns

who are sued for acts or omissions which occurred or allegedly occurred while the employee was

acting within the scope of his public employment or duties). As Defendants correctly note, based

on this provision, the Town has a statutory obligation to defend and indemnify the individual

Defendants for actions taken within the scope of their employment as Town employees. The

allegations in the amended complaint refer solely to conduct within the discharge of the

individual Defendants as supervisors. For example, Plaintiff alleges that, in his role as her

superior officer, Defendant Nightingale subjected Plaintiff to a hostile work environment and

"disparate treatment by denying overtime, instruction, and training opportunities that were

afforded to often less-qualified male officers." Dkt. No. 56 at ¶ 16. Plaintiff alleges that

Defendant Winn, in his role as Chief of Police, failed to remedy the situation or adequately

investigate her complaints of discrimination. See id. at ¶¶ 19-23. Plaintiff similarly alleges that

the Town Board Members and Town Supervisor Coogan failed to take action when these issues

were brought to their attention. Although Plaintiff claims that this conduct was done willfully

and with malicious intent, there are no allegations involving conduct outside the scope of the

individual Defendants' employment. See Higgins v. Town of Southampton, No. 06-cv-3941, 2008

WL 11417335, *4 (E.D.N.Y. Mar. 5, 2008) (granting the individual defendants' motion to dismiss

the plaintiff's state law sexual harassment and retaliation claims against them in their individual

capacities based on her failure to file a notice of claim, finding that the conduct all occurred

within the scope of their employment); see also McCormack, 214 A.D.2d at 546-47 (holding that

4 A copy of Section 3.2 of the Municipal Code of the Town of Camillus is available at

https://www.townofcamillus.com/documents/112.pdf (last visited Nov. 4, 2022).

29

the plaintiff was required to comply with notice of claim provisions because the allegation that

the school principal engaged in a willful course of malicious conduct designed to defame and

inflict emotional distress upon the plaintiff constituted conduct "intimately related to the

discharge of his duties as a principal and the legitimate goals of the [school d]istrict") (citations

omitted); W.E. Rest., Inc. v. Wilson, 38 A.D.3d 762, 762-63 (2d Dep't 2007) (holding that the

defendant was acting within the scope of her employment when she "maliciously contacted the

Suffolk County Department of Health Services for the purpose of triggering a wastewater review

of the plaintiff's restaurant in order to injure the plaintiff"); DeRise v. Kreinik, 10 A.D.3d 381,

381-82 (2d Dep't 2004); Wrobel v. Cnty. of Erie, No. 03-cv-277, 2004 WL 2922087, *4

(W.D.N.Y. Dec. 16, 2004) (holding that the individual defendants were acting within the scope of

their employment when they subjected the plaintiff to unwarranted discipline, harassment, and

age discrimination).

Since the individual Defendants were acting within the scope of their employment,

Plaintiff was required to comply with the notice of claim requirements. See Perez, 2018 WL

3420014, at *3; Croci v. Town of Haverstraw, 175 F. Supp. 3d 373, 388-90 (S.D.N.Y. 2016)

(holding that the plaintiff was required to comply with the notice of claim requirements of Town

Law § 67 and General Municipal Law §§ 50-e and 50-i in order to maintain her NYSHRL claims

against the individual defendants). Accordingly, the Court grants this aspect of Defendants'

motion to dismiss.

E. Tort Claims

In the fifth, sixth and seventh causes of action, Plaintiff asserts several common law tort

claims against Defendants Winn and Nightingale. See Dkt. No. 56 at ¶¶ 56-66. Defendants

contend that her claims for intentional and/or reckless infliction of emotional distress and prima

30

facie tort are time barred and must be dismissed. See Dkt. No. 57-3 at 29-30. Additionally,

Defendants argue that Plaintiff has failed to state a claim for prima facie tort. See id. at 30. In

response, Plaintiff argues that her claims are timely because beginning on March 20, 2020 and

continuing through November 3, 2020, the statutes of limitations and conditions precedent were

tolled by Executive Orders due to the ongoing pandemic. See Dkt. No. 59 at 25-26. As such,

Plaintiff claims that "the time period between March 20, 2020 and November 3, 2020 should be

excluded in measuring the timeliness of Plaintiff's claims. This action, commenced on October

13, 2020, is therefore timely." Id. at 25. In its reply, Defendants contend that, notwithstanding

the tolling of the statute of limitations by Executive Order 202.8, Plaintiff's tort claims are still

time-barred because the applicable statute of limitations expired before the Executive Order went

into effect. See Dkt. No. 60 at 11-13.

1. Statute of Limitations

Under New York law, the statute of limitations for intentional/reckless infliction of

emotional distress and other intentional torts is one year. See Trayvilla v. Japan Airlines, 178

A.D.3d 746, 747 (2d Dep't 2019) (citation omitted). Claims sounding in negligence are normally

subject to a three-year statute of limitations. See Durstenberg v. Electrolux Home Prod., Inc., 181

A.D.3d 444, 445 (1st Dep't 2020). Where a claim for prima facie tort is premised only on

intentional conduct, the one-year limitations period applies. See 10 Ellicott Square Ct. Corp. v.

Violet Realty, Inc., 81 A.D.3d 1366, 1368-69 (4th Dep't 2011) (citations omitted). The statute of

limitations begins to run when a tort cause of action accrues – "'when all of the facts necessary to

the cause of action have occurred so that the party would be entitled to obtain relief.'" B.F. v.

Reproductive Med. Assoc. of New York, LLP, 30 N.Y.3d 608, 614 (2017) (quotation and other

citations omitted).

31

In the present matter, Plaintiff commenced this action by filing a summons and complaint

on October 13, 2020. In her amended complaint, Plaintiff alleges that she "submitted a written

statement to the Chief on February 6, 2019 recounting six instances of sexual harassment by

Nightingale and identified three witnesses." Dkt. No. 56 at ¶ 21. Plaintiff next alleges that she

met with Defendant Winn "approximately two weeks later" to discuss her statement and that it

became clear to her that Defendant Winn was more concerned with "protecting Nightingale's

reputation than protecting Plaintiff." Id. at ¶ 22. Although Plaintiff claims that "[t]he hostile

work environment continued as Plaintiff was forced to continue working with Captain

Nightingale and Chief Winn with the knowledge that no action would be taken to protect her from

further adverse treatment," she does not allege any specific conduct occurring after the middle of

February of 2019 until her resignation on August 8, 2019. Id. at ¶ 23.

Plaintiff's claim of intentional and/or reckless infliction of emotional distress against

Defendant Nightingale is premised on the "extreme and outrageous conduct as demonstrated by

his actions set forth above." Id. at ¶ 57. Plaintiff, however, has failed to allege any extreme or

outrageous conduct by Defendant Nightingale that occurred after the allegations set forth in her

February 6, 2019 written statement. As such, this claim against Defendant Nightingale accrued

no later than February 6, 2019, and the time to file this claim expired, at the latest, on February 6,

2020.

Similarly, Plaintiff's prima facie tort claim against Defendants Winn and Nightingale is

based entirely on conduct occurring no later than the middle of February 2019, when Defendant

Winn failed to adequately investigate her claims of discrimination or otherwise take disciplinary

action against Defendant Nightingale. Plaintiff's claim accrued when she was made aware of the

32

alleged inadequate response to her written complaint at the second meeting with Defendant Winn

in the middle of February 2019. As such, this claim is also untimely.

Plaintiff's contention that her time for filing the complaint was tolled warrants little

discussion. On March 7, 2020, New York State Governor Andrew Cuomo issued Executive

Order 202, declaring a disaster emergency for the State of New York due to the COVID-19

pandemic. See 9 N.Y.C.R.R. § 8.202. On March 20, 2020, Governor Cuomo signed Executive

Order 202.8, limiting court operations to "essential matters" and declaring that "any specific time

limit for the commencement, filing, or service of any legal action, notice, motion, or other process

or proceeding as prescribed by the procedural laws of the state ... is hereby tolled from the date of

this executive order until April 19, 2020." Id. § 8.202.8. The Governor issued nine subsequent

Executive Orders, collectively extending the first order until November 3, 2020. See id. §§

8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.55, 8.202.55.1, 8.202.60, 8.202.63, 8.202.67.

Executive Order 202.72 provided that the tolling of time limits established by Executive Order

202.8 would no longer be in effect as of November 4, 2020. See id. § 8.202.72.

Here, the statute of limitations had already expired when Governor Cuomo issued

Executive Order 202.8. Nothing in the Executive Order indicates that it is to be retroactively

applicable and, "[b]y its clear terms, it cannot be read to revive already expired time

limitations[.]" Jackson v. Wilcox, 70 Misc. 3d 1208(A), *1 (Sup. Ct., Alb. Cnty. 2021) (holding

that Executive Order 202.8 is not retroactively applicable and it cannot revive already expired

time limitations). Since the statute of limitations expired no later than the middle of February

2019, Plaintiff's claim for intentional and/or reckless infliction of emotional distress and prima

facie tort are untimely and must be dismissed.

2. Tortious Interference

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In her sixth cause of action, Plaintiff alleges that Defendants Nightingale and Winn

"intentionally interfered with Plaintiff's employment with the Town of Camillus." Dkt. No. 56 at

¶ 61. Defendants contend that Plaintiff has failed to allege any of the requisite elements for this

claim. See Dkt. No. 57-3 at 30. In response, Plaintiff alleges that she has plausibly alleged that

Defendants Winn and Nightingale tortiously interfered with her employment and the absence of a

formal contract is not dispositive. See Dkt. No. 59 at 26-27.

"To establish a tortious interference cause of action, a plaintiff must establish '(1) that [the

plaintiff] had a business relationship with a third party; (2) that the defendant knew of that

relationship and intentionally interfered with it; (3) that the defendant acted solely out of malice

or used improper or illegal means that amounted to a crime or independent tort; and (4) that the

defendant's interference caused injury to the [plaintiff's] relationship with the third party.'" Munno

v. City of Rochester, 197 A.D.3d 309, 310-11 (4th Dep't 2021) (quotation omitted).

In the present matter, the Court finds that Plaintiff has failed to plausibly allege a causal

connection between any alleged independent tort or malicious conduct and Plaintiff's alleged

constructive discharge. The latest specific tortious or malicious conduct alleged in the amended

complaint occurred in February 2019. Plaintiff's resignation from her position with the Camillus

Police Department occurred on August 8, 2019. See Dkt. No. 56 at ¶ 23. Given the passage of

six months between the last improper act and Plaintiff's resignation, the Court finds that Plaintiff

has failed to plausibly allege that Defendants' conduct caused injury to Plaintiff's relationship

with her employer.

Moreover, the Court agrees with Defendants that Plaintiff's tortious interference claim is

an improper attempt to avoid the fact that New York courts do not recognize a claim for wrongful

discharge by at-will employees. Courts have repeatedly held that a plaintiff cannot avoid this

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general prohibition against wrongful discharge claims "by casting the cause of action in terms of

tortious interference with employment." Barcellos v. Robbins, 50 A.D.3d 934, 935 (2d Dep't

2008) (citations omitted); see also Baker v. Guardian Life Ins. Co. of Am., 12 A.D.3d 285, 285-86

(1st Dep't 2004) ("Plaintiff's cause of action for defamation is an improper attempt to circumvent

the rule that an at-will employee has no cause of action for wrongful discharge. ... As an at-will

employee, plaintiff can have no cause of action based on a co-employee's alleged tortious

interference with his employment. ... Nor does plaintiff identify any specific employment or

business relationship that he was prevented from entering into as a result of defendants'

interference, or adequately allege that defendants acted with the sole purpose of harming him,

such as would support a claim for tortious interference with prospective business or employment

relations") (citations omitted).

Accordingly, the Court grants Defendants' motion to dismiss as to Plaintiff's tortious

interference claim.

3. Prima Facie Tort

Defendants argue that, in addition to being time barred, Plaintiff's claim for prima facie

tort is subject to dismissal on the merits. See Dkt. No. 60 at 13-14. Specifically, Defendants

contend that the alleged injurious action – sexual harassment and gender-based employment

discrimination – is not an act that would otherwise be lawful. See id. The Court agrees.

The elements of prima facie tort are "(1) intentional infliction of harm; (2) resulting in

special damages; (3) without excuse or justification; (4) by an act that would otherwise be

lawful." Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 571 (2d Cir. 1990) (citing

Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332 (1983)). The Second

Circuit has held that "[t]he touchstone" of prima facie tort "is 'disinterested malevolence,'

35

meaning that the plaintiff cannot recover unless the defendant's conduct was not only harmful, but

done with the sole intent to harm." Twin Labs., Inc., 900 F.2d at 571 (quoting Burns, 59 N.Y.2d at

333). "[M]otives other than disinterested malevolence, 'such as profit, self-interest, or business

advantage' will defeat a prima facie tort claim." Id. (quoting Marcella v. ARP Films, Inc., 778

F.2d 112, 119 (2d Cir. 1985)). "'[P]rima facie tort was designed to provide a remedy for

intentional and malicious actions that cause harm and for which no traditional tort provides a

remedy, and not to provide a catch all alternative for every cause of action which cannot stand on

its legs.'" Gallagher v. New York City Health & Hosps. Corp., No. 16-cv-4389, 2017 WL

4326042, *6 (S.D.N.Y. Sept. 20, 2017) (quoting Kickertz v. New York Univ., 110 A.D.3d 268,

277 (1st Dep't 2013)).

Here, Plaintiff alleges that she was injured by Defendants' sexual harassment and gender-

based employment discrimination. Since this alleged conduct is unlawful, Plaintiff has failed to

allege the fourth element of her prima facie tort claim. Moreover, the claim is duplicative since it

"pursues redress for precisely the same injuries that her discrimination and retaliation claims are

looking to remedy. " Peck, 2021 WL 3710546, at *19; see also Woytisek v. JP Morgan Chase &

Co., 46 A.D.3d 331, 331 (1st Dep't 2007) (holding that dismissal of the plaintiff's claim alleging

prima facie tort was proper where it was based on the same allegations of harassment and

discrimination as his claim for intentional infliction of emotional distress, which was also

dismissed) (citation omitted).

Accordingly, the Court finds that Plaintiff's prima facie tort claim is subject to dismissal

on this alternative ground.

4. Intentional Infliction of Emotional Distress

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New York requires four elements to sustain a claim of intentional infliction of emotional

distress: (1) "extreme and outrageous conduct"; (2) "intent to cause, or disregard of a substantial

probability of causing, severe emotional distress"; (3) "a causal connection between the

[outrageous] conduct and injury"; and (4) "severe emotional distress." Howell v. N.Y. Post Co., 81

N.Y.2d 115, 122 (1993) (citation omitted).

This species of tort is disfavored by New York courts. See Turley v. ISG Lackawanna,

Inc., 774 F.3d 140, 158 (2d Cir. 2014). In particular, the first element of outrageous conduct is

"'rigorous, and difficult to satisfy.'" Howell, 81 N.Y.2d at 122 (quotation omitted). In fact, the

conduct alleged must be "so outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized community." Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303 (1983).

"Insults, bullying, and general harassment do not usually constitute a claim for [intentional

infliction of emotional distress] under New York law." Gorman v. Covidien, LLC, 146 F. Supp.

3d 509, 535 (S.D.N.Y. 2015). Neither does failing to investigate or appropriately respond to

claims of harassment to "two, three, or four complaints." Turley, 774 F.3d at 161. As a result,

"New York courts regularly deny intentional infliction of emotional distress claims in

employment discrimination cases." Daniels v. Health Ins. Plan, No. 02-cv-6054, 2005 WL

1138492, *3 (S.D.N.Y. May 12, 2005) (collecting cases). In fact, the Second Circuit has held that

forcing a plaintiff to take a polygraph under suspicion of theft solely because of her race is not

enough to state a claim for intentional infliction of emotional distress. See Martin v. Citibank,

N.A., 762 F.2d 212, 220 (2d Cir. 1985).

Measured against that high bar, Plaintiff's intentional infliction of emotional distress claim

falls far short. Without providing specific details, Plaintiff alleges that Defendant Nightingale

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subjected her to a hostile work environment and gender-based discrimination and that Defendant

Winn failed to properly investigate her complaints regarding the same. These allegations are

insufficient to plausibly allege the requisite "extreme and outrageous conduct.”

Accordingly, the Court grants Defendants' motion to dismiss Plaintiff's intentional

infliction of emotional distress claim on this alternative ground.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the reasons set forth above, the Court hereby

ORDERS that Defendants’ motion to dismiss (Dkt. No. 57) is GRANTED in part and

DENIED in part;> and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: March 9, 2023 A) □□ Do /

Albany, New York me = □□□ ae. ens

U.S. District Judge

> As result of this Memorandum-Decision and Order, the only remaining claims are

Plaintiff's Section 1983 claims against Defendant Nightingale and the Town of Camillus.

38