Opinion
22 CA 17–00664
03-23-2018
Lonnie DOTSON and Sonia Dotson, Plaintiffs–Respondents, v. J.C. PENNEY COMPANY, INC., J.C. Penney Carousel Store, David Stanton, individually, and Acting as Agent, Servant and/or Employee of J.C. Penney Company, Inc., and Andrew Vaughn, individually, and Acting as Agent, Servant and/or Employee of J.C. Penney Company, Inc., Gary Miguel, Chief of Police for City of Syracuse, City of Syracuse Police Department, City of Syracuse, Defendants–Appellants, et al., Defendants. (Appeal No. 1.)
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KRISTIN L. NORFLEET OF COUNSEL), FOR DEFENDANTS–APPELLANTS J.C. PENNEY COMPANY, INC., J.C. PENNEY CAROUSEL STORE, DAVID STANTON, INDIVIDUALLY, AND ACTING AS AGENT, SERVANT AND/OR EMPLOYEE OF J.C. PENNEY COMPANY, INC., AND ANDREW VAUGHN, INDIVIDUALLY, AND ACTING AS AGENT, SERVANT AND/OR EMPLOYEE OF J.C. PENNEY COMPANY, INC. JOSEPH E. FAHEY, CORPORATION COUNSEL, SYRACUSE (MARY L. D'AGOSTINO OF COUNSEL), FOR DEFENDANTS–APPELLANTS GARY MIGUEL, CHIEF OF POLICE FOR CITY OF SYRACUSE, CITY OF SYRACUSE POLICE DEPARTMENT AND CITY OF SYRACUSE. BOSMAN LAW FIRM, LLC, ROME (A.J. BOSMAN OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KRISTIN L. NORFLEET OF COUNSEL), FOR DEFENDANTS–APPELLANTS J.C. PENNEY COMPANY, INC., J.C. PENNEY CAROUSEL STORE, DAVID STANTON, INDIVIDUALLY, AND ACTING AS AGENT, SERVANT AND/OR EMPLOYEE OF J.C. PENNEY COMPANY, INC., AND ANDREW VAUGHN, INDIVIDUALLY, AND ACTING AS AGENT, SERVANT AND/OR EMPLOYEE OF J.C. PENNEY COMPANY, INC.
JOSEPH E. FAHEY, CORPORATION COUNSEL, SYRACUSE (MARY L. D'AGOSTINO OF COUNSEL), FOR DEFENDANTS–APPELLANTS GARY MIGUEL, CHIEF OF POLICE FOR CITY OF SYRACUSE, CITY OF SYRACUSE POLICE DEPARTMENT AND CITY OF SYRACUSE.
BOSMAN LAW FIRM, LLC, ROME (A.J. BOSMAN OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Sonia Dotson (plaintiff) and plaintiff Lonnie Dotson (Dotson) commenced this action against, inter alia, defendant J.C. Penney Company, Inc. seeking damages arising from a physical altercation in a shopping mall store on October 21, 2006. Thereafter, the complaint was amended to assert the 10th to 15th causes of action against the City of Syracuse (City) and Gary Miguel, the chief of police for the City (collectively, defendants), as well as against defendant City of Syracuse Police Department (SPD). Plaintiff was an SPD community service officer (CSO) and Dotson, her spouse, was an SPD police officer. The 10th to 15th causes of action allege, inter alia, that the SPD orchestrated the arrest and criminal prosecution of plaintiff for the shopping mall altercation in retaliation for a prior complaint of discrimination filed by plaintiff against it.
Defendants and the SPD moved to dismiss the amended complaint (complaint) against them. Supreme Court granted their motion in part, dismissed the complaint against the SPD and the 11th cause of action against defendants, and otherwise denied the motion. There was no appeal. Thereafter, defendants moved for summary judgment dismissing the remainder of the complaint against them. The court granted their motion only in part, dismissing the 10th cause of action insofar as it is based on allegations of unlawful discrimination and dismissing the remainder of the complaint against defendants insofar as it is asserted by Dotson. In appeal No. 1, defendants contend that the court should have granted their motion in its entirety and dismissed the complaint against them. We agree, and we therefore modify the order in appeal No. 1 accordingly.
We agree with defendants that the court erred in denying that part of their motion for summary judgment dismissing the retaliation-based causes of action against them. Defendants met their initial burden by demonstrating that plaintiffs failed to establish every element of retaliation (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ; Clark v. Thruway Fasteners, Inc., 100 A.D.3d 1435, 1435, 954 N.Y.S.2d 318 [4th Dept. 2012] ), and plaintiffs failed to raise an issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). More particularly, plaintiffs failed to establish the existence of a causal connection between plaintiff's discrimination complaint and the alleged retaliatory action (see Dotson v. City of Syracuse, 688 Fed.Appx. 69, 73 [2d Cir.2017] ; Howard v. City of New York, 602 Fed.Appx. 545, 549 [2d Cir.2015] ; see also Forrest, 3 N.Y.3d at 312–313, 786 N.Y.S.2d 382, 819 N.E.2d 998 ).
A plaintiff may establish causation by submitting evidence of, inter alia, temporal proximity between the protected activity and the adverse action or disparate treatment of similarly situated employees (see Hicks v. Baines, 593 F.3d 159, 170 [2d Cir.2010] ). Although temporal proximity may be sufficient to establish the causation element, the relevant period is measured from the date of the "employer's knowledge of [the] protected activity" ( Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 [2001] ; see Kim v. Columbia Univ., 460 Fed.Appx. 23, 25 [2d Cir.2012] ). In support of their motion, defendants submitted plaintiff's complaint to the Equal Employment Opportunity Commission, which was dated November 4, 2003, i.e., nearly three years before the physical altercation that allegedly gave rise to the retaliatory action. Thus, to the extent that plaintiffs relied on temporal proximity to establish causation, we conclude that they failed to establish the requisite causal nexus (see Howard, 602 Fed.Appx. at 549 ).
Plaintiffs also failed to establish causation based upon disparate treatment of similarly situated employees. "An employee is similarly situated to [coemployees] if they were (1) 'subject to the same performance evaluation and discipline standards' and (2) 'engaged in comparable conduct' " ( Ruiz v. County of Rockland, 609 F.3d 486, 493–494 [2d Cir.2010], quoting Graham v. Long Is. R.R., 230 F.3d 34, 40 [2d Cir.2000] ). Each of the employees identified by plaintiffs was a police officer, not a CSO, and thus, by plaintiffs' own admission, they were subject to different performance and discipline standards. Moreover, unlike plaintiff, none of those employees was alleged to have engaged in a physical confrontation with a civilian while off duty. We therefore conclude that plaintiffs failed to raise an issue of fact sufficient to defeat defendants' motion (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
In light of the above analysis, we agree with defendants that the cause of action alleging that Miguel aided and abetted the
City's retaliatory acts cannot survive (see Forrest, 3 N.Y.3d at 314, 786 N.Y.S.2d 382, 819 N.E.2d 998 ). Furthermore, the cause of action alleging municipal liability for Miguel's conduct cannot survive absent an act taken in violation of plaintiff's constitutional rights (see City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 [1986] ; Curley v. Village of Suffern, 268 F.3d 65, 71 [2d Cir.2001] ).
Finally, in view of our determination in appeal No. 1, we dismiss the appeal from the order in appeal No. 2 as moot (see JPMorgan Chase Bank, N.A. v Kobee, 140 A.D.3d 1622, 1624, 32 N.Y.S.3d 767 [4th Dept. 2016] ).
Now, upon reading and filing the stipulation of discontinuance with respect to defendants J.C. Penney Company, Inc., J.C. Penney Carousel Store, David Stanton, individually, and acting as agent, servant and/or employee of J.C. Penney Company, Inc., and Andrew Vaughn, individually, and acting as agent, servant and/or employee of J.C. Penney Company, Inc. signed by counsel for those defendants and for plaintiffs on November 22, 2017,
It is hereby ORDERED that said appeal by defendants J.C. Penney Company, Inc., J.C. Penney Carousel Store, David Stanton, individually, and acting as agent, servant, and/or employee of J.C. Penney Company, Inc., and Andrew Vaughn, individually, and acting as agent, servant, and/or employee of J.C. Penney Company, Inc. is unanimously dismissed upon stipulation, and the order is modified on the law by granting the motion of defendants Gary Miguel, Chief of Police for City of Syracuse, and City of Syracuse in its entirety, and dismissing the amended complaint against them, and as modified the order is affirmed without costs.