UNITED STATES DISTRICT COURT SOURTHERN DISTRICT OF NEW YORK ____________________________________________ ____ X DOROTHEA PERRY AND JEAN SEME INDEX NO. 21cv1 1967 ( VEC ) Plaintiff s , - against - NEW YORK STATE ATHLETIC COMMISSION, KIM SU MBLER, E XEC , DIR., NEW YORK STATE DE PARTMENT OF STATE a nd ANTHONY GIARDINA Defendants. ____________________________________________ _____ X PLAINTIFF S DOROT HEA PERRY AND JEAN SEME ’ S MEMORANDUM OF LAW IN OPPOSITIO N TO DEFENDANTS NEW YORK STATE ATH LETIC COMMISSION , KIM SU MBLER, NEW YORK STATE DEPARTMENT OF STATE a nd AN THONY GIARDINA ’ S MOTION TO DISMISS PURSUANT TO FRCP 12(b) (1) and 12(b)(6) Susan Ghim Law Office of Susan Ghim Attorney for Plaintiff s 244 Fifth Avenue, Suite 1434 New York, NY 10001 (917) 549 - 4708 ghimlaw@gmail.com Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 1 of 36 i TABLE OF CONTENTS Table of Authorities -------------------------------------------------------------------------- ---------- ii , iii I. Preliminary Statement ----------------------------------------------------------------- ------------- 1 II. Procedural History ---------------------------------------------------------------------- ------------ 5 III. Statement of Facts ------------------------------------------------------- ---------------- ------------ 5 IV. Argument ------------------------------------------------------------------------------- -------------- 13 Prima Facie Claims A) No Soveriegn Immunity under 42 USC 1983 and Fourteenth Amend.................14 B) Statute Of Limitations ----------- ------------------------ ------------ -------------------------- 18 C) Plaintiffs’ 1983 and Fourteenth Amendment Claims -------------------- - --------------- - - 1 9 D) Deprivation of Plaintiffs’ Fourteenth Amendment Rights: equal protection and due process rights under CSL §75 or State Action by Individual Defendants -------------- 20 E) Hostile Work Environment, Harassment Discharge and Retaliation Claims Pursuant to §1983 ------------------------------------------------------------------------------- 22 1. Plaintiff Seme was dep rived of Fourteenth Amendment right to liberty and Fourth Amendment right against unreasonable search and seizure ---------------- 23 2. Sexual Harassment of Plaintiff Perry on or about March 17, 2017 ---------------- 25 3. Post Discharge Retaliation under §1983 ------------------------------------------------ 27 V. Request for Leave to File Third Amended Complaint ----------------------------------- ------ 2 9 VI. Conclusion ------------------------------------------------------------------------------------------- 30 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 2 of 36 ii TABLE OF AUTHORITIES FEDERAL COURTS SUPREME COURT Burlington N. & Santa Fe Ry. Co. v. White , 548 US 53, 67 (2006) ----------- ------------------------- 27 Fitzpatrick v Bitzer 427 US 445, 622 (1976) ----------------- - -------------------------------------- 14, 15 Lugar v. Edmondson Oil Co . 457 US 922 (1982) ------------------------ ----------------------- 14, 15 , 19 Nev. Dep’t of Human Res. V. Hibbs , 538 US 721, 962 - 963 (2003) ------------------------- 1 4 ,15, 16 SECOND CIRCUIT Chambers v. Time Warner Inc. , 282 F3d 147, 153 (2d Cir. 2002) --------------------------- ---------- 1 4 DiFalco v. MSNBC Cable LLC , 622 F3d 104,111 (2d Cir. 2010) --------------------------- ---------- 1 4 Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 178 – 79 (2d Cir. 2005) ----------- ------------ --- 2 8 Lore v. City of Syracuse , 670 F.3d 127,167 (2d Cir. 2012) ---------------------- ------------------ ---- 12 McCarthy v. Dun & Bradstreet Corp ., 482 F3d 184, 200 (2d Cir. 2007) ------------------ ----------- 29 Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117, (2002 ) ----------------------------------- 18 Papelino v. Albany Coll. of Pharmacy of Union Univ ., 633 F.3d 81, 91 (2d Cir. 2011 ) ----------- 18 Perry v. Ethan Allen, Inc ., 115 F.3d 143, 150 (2d Cir. 1997) -------------------------------------- --- 25 Redd v. New York Div of Parole , 678 F3d 166, 179 - 181 (2d Cir. 2012) ---------------------------- 25 Torres v. Pisano , 116 F.3d 625, 633 (2d Cir. 1997) ----------------------- ------------- --------------- 25 Vega v. Hempstead , 801 F3d 72, 79 (2d Cir. 2015) -------------------------------- --------------- 18 , 21 U NITED S TATES D ISTRICT C OURT , SDNY Ali v. Div. of State Athl.Com. , 316 F.Supp. 1246, 1250 (SDNY 1970) ------- -------------- --- 1 6, 17 Burhans v. Lopez 24 F.Supp 3d 375, 281 (SDNY, 2014) --------------------------------- - -------- --- 20 Grullon v. City of New Haven , 720 F3d 133, 139 (2d Cir. 2013) ------------------------- ---------- 20 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 3 of 36 iii Restis v. Am. Coal. Against nuclear Iran, Inc . 53 F.Supp.3d 705, 729 - 730 (SDNY 2014) — ------ 18 UNITED STATES DISTRICT COURT , EDNY Zahler v. Empire Merchants LLC , at 17 - 18 (EDNY 2012) -------------------------------- --- ----- 10 , 11 FEDERAL ST ATUTES Constitutional Amendments Fourth Amendment ------------- --------------------------------------------------------------------- ---------- 2 3 Fourteenth Amendment ----------------------- --------------------------- - ----------- 1,2,14,15,18, 19, 20, 22 Federal Rules of Civil Procedure FRCP 12(b)(1) --------------------------------------------------------------- ---------------- ------------ 1, 17, 30 FRCP 12(b)( 6) --------------------------------------------------------------- ----------------- ----------- 1, 13, 30 FRCP 15(a) ------------------------ ------------------------------------- ----------------------------- ------------ 29 Federal Judicial Rules 28 USC 1343 ---------------------------------------------------------------- ----------------------- ------------- 1 Fair Labor Standards Act 29 USC §201 - ---------------------------------------------------------------- ---------------------- ------------- 1 Civil Rights Statutes 42 USC § 1983 --------------- -------------------------------------------- ------------ 1,2,14,15, 18 , 19, 20, 22 42 USC § 1985 (3) ------- ---------------------------------------------------------------------- ------------- 1, 30 STATE STATUTES NYS Civil Service Law §43 ----------------------- -------------------------------------------- - 21 NYS Civil Service Law §75 ----------------------------- ------ ---------------------- 2 , 2 0,21, 23 New York Labor Law §650 --------------------------------------- ------------------------------- 1 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 4 of 36 4 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 5 of 36 1 Plaintiff Dorothea Perry (“ Perry ”) and Plaintff Jean Seme (“Seme”) (collectively, “Plaintiffs”) by and through t he i r attorney Law Office of Susan Ghim, submit this Memorandum of Law together with the Attorney Declaration of Susan Ghim with Exhibits A through I in opposition to Defendants ’ New York State Athletic Commission, New York State Department of State, Kim Sumbler and Anthony Giardina’s motion to dismiss the Second Amended Com plaint ( S AC) pursuant to FRCP 12(b)(1) sovereign immunity; 12(b)(6) for failure to state a claim and proposed Third Amended Complaint to add the court’s jurisdiction pursuant to 28 USC §1343, and add Defendants Maria Herman and James Leary ; and to add a cl aim of conspiracy pursuant to 42 USC §1985 for depriv ation Plaintiff s of their rights under the Fourteenth Amendment to the US Constitution and laws. Plaintiffs withdraw application of 42 USC §1981 Plaintffs ha ve pled prima facie claims as follows: I P RELIMINARY STATEMENT This action was commenced by Plaintiff Dorothea Perry and Plaintiff Jean Seme with the filing of a complaint on or about March 5 , 2021 [ECF doc. no. 1] pursuant to the F air L abor S tandards A ct 29 USC § 201 et seq and the N ew Y ork L abor L aw § 650 et seq. and 42 USC § 1983 and the Fourteenth Amendment to the United States Constitution. During the discovery phase of litigation in this matter, documentary evidence and deposition testim ony produced during October 2021, revealed that defendant Anthony Giardina (“Giardina”) without legislative authority or executive powers of the Governor, unilaterally mischaracterized Plaintiffs as “at will” employees in contravention of NYS Civil Service Laws that govern the employment of all employees of NYS. Accordingly, Fourteenth Amendment deprivation of Plaintiffs rights under the NYS CSL was sufficient to overcome Defendants’ sovereign immunity claims. Further, state official Maria Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 6 of 36 2 Herman, James Leary and Linda Baldwin were shown to have directly participated in the discharge and retaliation against Plaintiffs. Individua l Defendants Kim Sumbler (“Sumbler”) and Giardina were state officials who directly participated in the deprivation of Plaintiffs’ rights to liberty, property, equal protection and due process under the US C onstitution and laws as guaranteed by the Fourteenth Amendment. The deprivation of Plaintiffs’ Fourteenth Amendment right s continue to date. On or about 2016, defendant Giardina without statutory, legislative authority or executive powers of the Governor, deemed inspectors as “at will” employees in a NYSAC inspectors manual. T he New York State Civil Service Law §75 (“CSL § 75”) regulates all employment in service of New York State (“NYS”) Notwithstanding , d efendant s Giardina and Sumbler relied on their legally inoperative inspector manual to unlawfully discharge Plaintiff Seme in 2017 and Plaintiff Perry in 2018 as at will employees These actions taken against Plaintiffs by d efendant s Giardina and Sumbler constituted actions “under color of law” or “state action for the purposes of the Fourteenth Amendment and 42 USC §1983. D efendants Giardina and Sumbler dire ctly and actively participated in creating and maintaining a hostile work environment and discriminated against Plaintiffs based on race and gender and further to depriv e them of liberty, property without due process and equal protection under the CSL and NYLL. A hostile work environment, discharge, promotion and retaliation claims are actionable under a §1983 claim Since on or about 2009 to the date of discharge on or about April 25, 2018 , Plaintiff Perry , the sole African American female inspector at NYSAC, suffered continuous racial and gender discrimination and harassment within a hostile work environment. On or about 201 7 , Plaintiff Perry was denied a promotion by defendant Giardina, from inspector to deputy commissioner despit e an exemplary 14 year work history a s a NYSAC inspector , a four year Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 7 of 36 3 college degree and recommendations by supervisors and NYSAC chairperson, Tom Hoover Instead, defendant Giardina promoted less qualified , non - African American men , some with a disciplinary history and no more than a high school diploma and less years of experience One of these men, Frank Vasquez, who referred to Plaintiff Perry as a “N” word, a racial slur used against African Americans and the misogynistic slur, “c**t,” in front of other inspectors on multiple occasions was promoted by defendant Giardina over Plaintiff Perry. Contemporaneous with defendant Giardina’s denial of Plaintiff Perry’s promotion, at an event at Madison Square Ga rden (“MSG”) on March 17, 2017, defendant Giardina sexually harassed Plaintiff Perry by demanding a “hug” in the presence of other inspectors including Plaintiff Seme. Horrified, Plaintiff Perry immediately back ed away and refused physical contact with de fendant Giardina. Later that evening, Plaintiff Seme who witnessed defendant Giardina’s misconduct was discharged by defendant Giardina without notice and a hearing as required under CSL § 75 On or about 201 5 , then executive director David Berlin summarily rejected Plaint i ff Perry ’s application for a NYS boxing judge license citing a 2 year ban regulation. This denial of a boxing judge license destroyed Plaintiff’s opportunities to work in New York State. After Plaintiff Perry complained to David Berlin that his personal friend Sue Etkin and other non African American women received preferential assign ments to televised boxing events David Berlin willfully remov ed Plaintiff Perry from assignment rotations a ltogether On or about March 21, 2017, Plaintiff Seme emailed a request for a hearing concerning his discharge on March 17, 2017 to Secretary of State Rosanne Rosado and Affirmative Action Officer Maria Herman This prompted defendants Giardina and Sumb ler to make false reports of aggravated harassment against Plaintiff Seme. Based upon the false reports, NYS Trooper Charles D. Sands was sent to Plaintiff Seme’s home to investigate the employment dispute and coerce Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 8 of 36 4 plaintiff Seme to confess to making th reats he never made Plaintiff Seme’s complaints were neither adequately investigated nor r esponded to. Instead, since on or about March 17, 2017 and continuing to date, Plaintiff Seme suffered repeated post discharge harassment by the New York State Pol ice at the behest o f NYS DOS officials James Leary, defendant Sumbler, defendant Giardina and Brendan Fitzgerald (deceased 2018) whom Plaintiff Seme never met. Plaintiff Seme had no criminal record at any relevant time. T wo New York City district attorney offices declined to investigate Plaintiff Seme, because they found “no crime” and “no threats” based on the false report s by NYS DOS officials, James Leary, defendant Sumbler, defendant Giardina and Brendan Fitzgerald. N otwithstanding, these defendants and state official James Leary continued to report baseless criminal charges to Charles D. Sands that Plaintiff Seme made what they perceived as threats that were n ot directed at any of them. According to NYS Police docume nts, these state officials conceded that Plaintiff Seme never made threats and never entered NYSAC’s headquarter offices. Notwithstanding , during 2018, defendant Sumbler continued to make false reports to NYS Police that Plaintiff Seme threatened her at p ublic venues but later concede d no threats were made At all relevant times, i t was defendant Sumbler who confronted Plaintiff Seme at these public venues , revoked back stage promotor’s passes that she was never authorized to do and harassed Plaintiff Seme The last incident of intimidation by NYS DOS and NYS police occurred on or about June 201 8 that forced Plaintiff Seme to leave NYS on or about fall 2018 for fear of further deprivation of his right to life and/or liberty. To date, Plaintiff Seme has been unable to return to his native NYS because of defendant Sumbler ’s false reports to police On or about April 2018, Plaintiff Seme applied for a second license from NYSAC. NYSAC acknowledged receipt of the application but t o date has not served Plaintiff Seme with notice and Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 9 of 36 5 opportunity to heard on an issuance or denial of his second license application. Since on or about 2017, d efendant Sumbler has exercised complete, arbitrary and capricious authority over boxing license s. As a result of repeated discrimination and harassment, Plaintiffs each suffered mental anguish, emotional distress, compensatory, economic and/or punitive damages against the individual state actor s and state actor defendants. NYSAC and NYS DOS state officials should be enjoined from their continuing discriminatory practices and harassment of Plaintiffs that continue to date II. PROCEDURAL HISTORY This action was filed on or about March 5 , 2021 with the filing of a Complaint. [ECF doc. no.1] The First Amended Complaint was filed on or about March 8 , 2021 [ECF doc. no. 3 ] On or about July 13 , 2021, a settlement conference was held before a mediator but no settlement was reached by the parties . [ECF doc. no. 21] An initial pre - trial conferen ce was held telephonically before the Honorable Valerie Caparoni on or about August 20, 2021 wherein it fact discovery was ordered to end on or about December 31, 2021 . [ECF doc. no. 29] Pursuant to the Court’s order dated September 7 , 2021, [ECF doc. no 33] the Second Amended Complaint was filed on or about September 7, 2021 [ECF doc no. 34 ] Pursuant to the Court’s Order dated September 7, 2021 [ECF doc. no. 31] a ll named Defendants filed a motion to dismiss pursuant to FRCP 12 on or abou t October 8, 2021. [ECF doc. nos. 38 - 40] III STATEMENT OF FACTS Plaintiffs refer the Court to the Second Amended Complaint (“SAC”) for detailed statement of facts and t o documents produced by defendants and non party witnesses on or about October 2021 that are integral to the complaint Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 10 of 36 6 Plaintiff Dorothea Perry (“P erry ”) was employed as a n Inspector, a civil service employee, for the New York State Athletic Commission that regulates the sports of boxing, mixed martial arts (“MMA”) and wrestling, since or about 2004 until her unlawful discharge on or about April 25, 2018 SAC ⁋9, 10, 12, 17 , 43 Plaintiff Jean Seme was employed at NYSAC as an inspector from on or about 2015 until his unlawful discharge on or about March 17, 2017 . SAC ⁋28 On or about 2016, defendant Anthony Giardina, without legislative or executive authority of the Governor, declared in a NYSAC Inspector Manual that Inspectors were “at will” employees in contravention of the New York State Civil Service Law (“CSL”)§75 SAC ⁋41, 47 [Giardina Dep. Tr. ] On or about March 17, 2017, defendant Giardina discharged Plaintiff Seme without notice or hearing required prior to discharge under CSL §75. SAC ⁋ 31 On or about April 25, 2018, Defendant Sumbler similarly discharged Plaintiff Perry in violation of the Civil Service Law §75 SAC ⁋ 18 Additionally, during on or about 2016, defendant Giardina re - set Plaintiffs’ wages from a daily wage of app roximately $52 per event to $100 per event when events required Plaintiffs to regularly work 10 – 12 hours per work shift. SAC⁋ 81 Instead of applying wage and hour standards under New York Labor Law §650 , defendant Giardina unlawfully applied a daily wage comparison of the NYSAC’s existing $52 per event wages and other states’ wage rates that drastically fell below N YLL standards SAC⁋81 - 84 During all relevant times of Plaintiffs’ employment with NYSAC it took on average, six (6) or more weeks for Plaintiffs’ to receive their wages. SAC ⁋ 85 Plaintiffs’ reports of discrimination and harassment to the sole NYS DOS and NYSAC affirmative action officer Maria Herman , since on or about 2015 were always decided in favor of the NY S DOS official with “unsubstantiated” findings and/or buried. SAC ⁋ 69, 72, 154 Over the course of the 14 years that Plaintiff Perry was employed at NYSAC, Maria Herman was the sole Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 11 of 36 7 officer who purportedly investigated and decided these complaints. SAC ⁋154 During discovery in October 2021, internal departmental EEO complaints were produced that were signed by Maria Herman “on behalf of [Dorothea Perry] or [Jean Seme].” [ Ghim Decl. Ex. F ] Neither of Plaintiffs provided Ms. Herman with authorization or co nsent to sign any document on either of their behalf. Notwithstanding, these internal complaints were signed by, filed with , investigated by and decided by Ms. Herman Neither of Plaintiffs were ever provided with copies or notified of these purported fi lings or even the existence of these complaints. Instead, Plaintiff Perry was repeatedly told her complaints were unsubstantiated and Plaintiff Seme was ignored and never responded to except to state that Ms. Herman was in receipt of his complaints. SAC ⁋ 154 . Herman thereby deprived Plaintiffs of their due process rights to a hearing on their discrimination grievances and discharge. Thereafter, repeated requests by each of Plaintiffs to NYS DOS counsel Linda Baldwin, Secretary of State Rosanne Rosado and M ichael Volforte, Director of Governor’s Office of Employee Relations were also ignored. SAC ⁋ 154 - 156 By letter dated on or about April 6, 2018, the IG’s office referred the complaints to the Governor’s Office of Employee Relations (“GOER”) SAC ⁋ 155 H owever, on or about April 25, 2018, defendant Sumbler discharged Plaintiff Perry. SAC ⁋ 156 By letter date on or about December 2018, GOER refused to investigate and allowed the subject state action to continue. SAC ⁋ 155 Based on the timing of the IG’s letter dated April 6, 2018 concerning racial and gender discrimination and sexual harassment by defendant Giardina perpetrated on Plaintiff Perry from on or about 2016 to 2018, Plaintiff Perry was discharged on April 25, 2018 in retaliation for her complaints SAC ⁋ 155,156 April 21, 2018 Barclays Event Center – Boxer Card: Broner, Davis, Charlo As of 2018, Plaintiff Perry had an undisputed and exemplary work performance record during all relevant times of her employment with NYSAC SAC ⁋ 145 Notwitstanding , defendant Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 12 of 36 8 Kim Sumbler fabricated a work policy violation and accused Plaintiff Perry in an internal memo to James Leary and Brendan Fitzgerald , of breaching NYSAC’s Locker Ro om Policy at an event that Plaintiff Perry worked on April 21, 2018 , at the Barclays Event Center (“Barclays”) SAC ⁋ 56, 175 Defendant Sumbler conspired with deputy commissioner Edward Kunkle and inspector Rey Rosario as a basis to discharge Plaintiff Pe rry. SAC⁋ 59 At the event on April 21, 2018, Sumbler Kunkle and Rosario committed egregious safety violations and sought to cover up their failures by fabricating a policy violation against Plaintiff Perry SAC ⁋ 151 Mr. Kunkle stated he observed more than the allowed number of individuals in boxer Gervont a Davis’ locker room when Plaintiff Perry and boxer Davis were not present in the locker room, and then stated he left without remedying the situation. [ Ghim Decl. Ex. I ] Deputy commissioner Kunkle who was “back of the house” manager on April 21, 2018, blamed inspector Plaintiff Perry for his dereliction of duty which was to oversee and supervise all activities in locker rooms at all times during the event [Ghim Decl. Ex. I ] This false allegation of a work policy violation was not revealed to Plaintiff Perry until approximately month s after Plaintiff Perry’s discharge, on or about July 2018 through documents obtained by the New York State Department of Labor, PESH division SAC Plaintiff Perry filed a workplace violence complaint on or about April 22, 2018 because a t the April 21, 2018 event, Plaintiff Perry was verbally attacked with death threats by a Swanson Media reporter Andrew Jackson aka Sam Jackson SAC⁋ 25 The purpose of defendant Sumbler’s April 23, 2018 Internal memo was to place focus Plaintiff Perry in order to cover up her own multitude of safety policy violations in just one event on April 21, 2018, at Barclays. SAC ⁋ 22 – 25, 151, 152 Defendant Sumbler placed boxers and employees in great physical danger that evening of April 21, 2018 SAC ⁋ 22 - 25 Specifically, d efendant Sumbler placed boxer Gervonta Davis ’ life in danger while Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 13 of 36 9 he was en route to his after bout physical exam accompani ed by Plaintiff Perry and Avery Browne, M.D. because she authoriz ed a Swanson Media reporter to divert boxer Davis to the press pool for an after - bout interview instead of his post bout medical exam SAC⁋ 25 Pursuant to mandatory medical protocol and Ave ry Browne, M.D.’s orders for boxer Davis to “not stop,” Plaintiff Perry continued to escort boxer Davis to the medical exam room. SAC ⁋ 25 When Plaintiff Perry refused to divert boxer Davis to the press pool, the Swanson Media reporter immediately shoute d threats to “kill” Plaintiff Perry while kicking doors and trash cans. SAC⁋ 25 Defendant Sumbler’s internal memo contained multiple racist mischaracterizations concerning boxer Davis and his “camp” or entourage, first by referring to boxer Davis as “gang related” when there was no basis in fact for this aspersion of criminality. SAC ⁋ 56 Defendant Sumbler also stated in the memo referring to three men who were authorized by boxer Davis and his management to walk boxer Davis out to the ring or “ring walk.” SAC ⁋ 56 Even after defendant Sumbler identified these three men who were authorized to be in Gervonta Davis’ locker room, defendant Sumbler mischaracterized these three African American men as “three large men” and that they “stared [her] down when she asked them to leave and caused her to perceive a “dangerous situation.” SAC ⁋ 56 - 59 In fact, these three men promptly and politely left boxer Davis’ locker room after being asked to leave by defendant Sumbler. SAC⁋ 56 At the same event on the night of Apr il 21, 2018, defendant Sumbler authorized the ten (10) year old son of boxer Justin Savi to serve as his language translator and second in his corner. SAC ⁋ 23 Based upon information and belief, Defendant Sumbler’s administrative assistant and “linguist” Luanna Ferreira failed to assign boxer Savi a langua g e interpreter, and instead assigned Luanna Ferreira to assign boxing gloves to boxers without any experience or training whatsoever. SAC ⁋ 22, 23 When other NYSA C officials prevented the child from entering the ring, boxer Savi, Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 14 of 36 10 a Ghana n ian, was left without a language translator severely limiting his communications with physicians during his bout which were crucial to his safety. SAC ⁋ 23 Defendant Sumbler was r ingside during boxer Savi’s bout and did nothing about boxer Savi’s dangerous situation. SAC ⁋ 23 Also, on the night of April 21, 2018, a widely publicized shooting incident occurred inside Barclays involving rapper artist Tekashi69. See, Semedi v. Barclay s (EDNY, 2018) However, defendant Sumbler did nothing to ensure the safety of Plaintiff Perry, boxer Davis and Dr. Browne when they left the ring for boxer Davis’ post bout medical exam. SAC ⁋ 25 On or about April 25, 2018, when d efendant Sumbler discha rged the sole African American female inspector in keeping with her discriminatory employment practices of erasing African American (“AA”) women from her staff SAC ⁋ 12, 48, 55, 72, 129 , 135, 137, 152 , 160, 168, 170 The racial and gender diversity among NYSAC inspectors and deputy commissioners were at all relevant times abysmal. SAC ⁋ 72 , 176 This was mainly due to the lack of public posting of jobs and hiring based on referrals by existing employees. As of 2018 an d prior years, of approximately sixty (60) total nspectors and deputy commissioners, there were zero (“0”) African American male or female deputy commissioners; zero (“0”) female (of any race) deputy commissioners, and zero (“0”) Asian American 1 male or f emale inspectors or deputy commissioners. SAC⁋72 NYSAC inspector George Ward testified at his deposition under intimidation and threat of discharge 2 on or 1 O n or about October 11, 2021, defendant Sumbler, a trained mixed martial arts athlete, posted on her public face book account her racial animus toward Asian American (“AAPI”) women stating in relevant part,“ So I went to Chinatown today to treat myself to so me delicious soup dumplings ...only to find myself sitting next to two elderly Asian ladies chowing down on boiled chicken feet...never so grossed out in my life .” [Ex. G ] This erasure of AAPIs from employment at NYSAC was maintained by defendant Sumbler’s ra cial animus. Racial and/or gender hostility toward one group invariably permeates and impacts all other groups. Plaintiffs respectfully request that the Court enjoins defendants’ ongoing discriminatory practice of enabling and harboring a racially hostile and misogynistic work environment. 2 George Ward testified at his deposition that he was first notified of his deposition on that morning, on October 11, 2021 by NYSAC / NYSDOS attorney Lisa Joslin. [ Ex. H, Ward Tr. 13, Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 15 of 36 11 about October 12, 2021 that he had not seen a public job posting for inspectors in his 35 years with NYSAC. Mr. Ward further testified that it was his understanding during his 35 years at NYSAC that all discharged employees were afforded a hearing SAC⁋ 157 PLAINTIFF SEME Plaintiff Jean Seme was employed at NYSAC as an inspector from on or about 2015 until his unlawful discharge on or about March 17, 2017. SAC⁋ 28 Plaintiff Seme was discharged by defendant Giardina at the end of a boxing event at Madison Square Garden on Mar ch 17, 2017. SAC⁋ 31 The evening of March 17, 2017 was the same night that Plaintiff Seme witnessed defendant Giardina sexually harass Plaintiff Perry by demanding a hug. SAC⁋ 148 On that same evening of March 17, 2017 , despite Giardina’s email dated on or about March 16, 2017 to Plaintiff Perry that she would not report to Frank Vasquez based on her complaints, Plaintiff Perry was summoned to a locker room by Vasquez for no stated reason. Vasquez, on multiple occasions referred to Plaintiff Perry as the “ N” word and “c**t.” SAC⁋ 27, [Ward Dep. Tr. 79, ln 20 - 25, 80, ln 2 - 25 ] Vasquez also misrepresented that Giardina gave him a position at the NYS Division of Human rights to deter Plaintiff Perry from filing complaints. SAC ⁋153 Defendant Giardina and depu ty commissioner Anthony Cor accia falsely accused Plaintiff Seme of failing to take boxer Jhovanny Collado to his pre - bout medical exam. SAC⁋ 32 NYSAC/ NYS DOS’ own records however, revealed that it was deputy commissioner C a rreci a who was charged with the duty of ensuring that boxer Collado completed his pre - bout physical. [Ghim Decl. ⁋14 Ex. J ] In order to cover up for Mr. C ar ec c i a ’s breach of his duties, defendant Giardina fabricated a violation by Plaintiff Seme. SAC ⁋ 32 Defendant Giardina testified at his deposition he had no boxing, MMA or wrestling experience and that he had no idea of the order of pre - bout ln 19 - 24 ] Mr. Ward testified that he feared retaliation and /or discharge by NYSAC for testifying at his deposition. [ Ex. H, Ward Dep. Tr. 28, ln 2 - 11 ] Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 16 of 36 12 or preparation work necessary for boxers. [Giardina Dep. Tr. ] After his discharge, Plaintiff Seme requested a hearing. SAC ⁋35 Plain tiff Seme was not afforded any hearing On or about March 21, 2017, Plaintiff Seme emailed complaints about his discharge and requests for a hearing to Secretary of State Rosanne Rosado and Affirmative Action Officer Maria Herman. SAC [Ghim Decl. Ex. E ] Previously, Plaintiff Seme complained about racial discrimination in the assignment of work and payment of wages that were often delayed approximately six (6) weeks or more. SAC ⁋ 86 Plaintiff Seme’s complaints were neither adequately investigated nor responded to by any of the officials to whom he complained. SAC ⁋ 36, 132 Instead, since on or about March 17, 2017 and continuing to date, Plaintiff Seme suffered repeated post discharge harassment by the New York State Police at the behest of NYS DOS and NYSAC officials James Leary, defendant Sumbler, defendant Giardina and Brendan Fitzgerald (deceased. on or about f all/winter 2018) whom Plaintiff Seme never met. SAC ⁋ 35 - 37 , 164, 165, 173 [Ghim Decl. Ex C and D ] Plaintiff Seme had no criminal record and two New York City district attorney offices declined to investigate Plaintiff Seme, because they found “no crime” and “no threats” as reported to them on or about March 2017 by NYS DOS officials, Leary, Sumbler, Giardina and Fitzgerald. [Ghim Decl. Ex. C ] Notwithstanding, during 2018, these NYSDOS officials continued to report to New York State Police, baseless cha rges that Plaintiff Seme made what they perceived as threats but never directed at them. SAC ⁋ 33 - 37, 39, 64 [Ghim Decl. Ex. C ] According to NYS Police documents, these NYS DOS officials conceded that Plaintiff Seme never made threats and never entered N YSAC’s headquarter offices. [Ghim Decl. Ex. C ] The last incident of intimidation by NYS DOS and police occurred on or about April 2018, that drove Plaintiff Seme to leave New Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 17 of 36 13 York State on or about fall 2018 for fear o f further harassment by defendant S umbler SAC⁋39 [Ghim Decl. Ex. C ] Similarly, after Plaintiff Perry’s termination, defendant Sumbler authorized security to eject Plaintiff Perry from a public boxing event at Barclays event center. SAC ⁋ 162,163 Aware of the threats by NYS Police against Plaintiff Seme, Plaintiff Perry ceased attendance at public boxing events for fear defendant Sumbler would cal l security again or the NYS Police. SAC ⁋ 183 Additionally, Defendant Giardina testified that he inter viewed with reporter Thomas Hauser on multiple occasions. Thereafter, defamatory articles about Plaintiff Perry by reporter Thomas Hauser were published on or about 2016, 2017. 2018 and most recently on or about April 2021 post - discharge SAC ⁋ 178 The fea r and post - discharge retaliation perpetrated by NYSDOS/NYSAC officials on both Plaintiffs continue to date. SAC ⁋ 167, 177 As a result of individual defendants ’ unlawful conduct , Plaintiff Perry and Plaintiff Seme suffered compensatory, economic and punitive damages including but not limited to loss of employment, loss of professional reputation, loss of wages, loss of opportunities, mental anguish and/or emotional distress. SAC ⁋ 183 IV ARGUMENT Legal Stand ard on a FRCP 12(b)(6) motion to dismiss On a FRCP 12(b)(6) motion to dismiss the standard is whether the complaint sufficiently pleaded facts when taken as true, makes out a plausible claim for the relief requested. Ashcroft v. Igbal , 129 S.Ct. 1937, 1949 (S.Ct. 2009) Implausibility of the allege d facts is not determined by the Defendant’s mere disagreement with those alleged facts See, Bell v. Twombly 550 US 544, 570 (S.Ct. 2007) Plausibility is determined by whether the facts alleged/pled “ allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” in the light Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 18 of 36 14 most favorable to plaintiff. Id In this motion, based on documents and deposition testimony obtained during discovery which are extra neous documents but integral to the SAC 3 , Plaintiffs have surpassed the plausibility threshold standard. Accordingly, t he court should deny Defendants’ motion to dismiss the S AC because Plaintiff s ha ve sufficiently alleged plausible 14 th amen d. claims that abrogated sovereign immunity as set forth infra Prima Facie Claims No Sovereign Immunity under 42 USC §1983 and F ourteenth A mendment Plaintiffs first address their 42 USC §1983 (Fifth Cause of Action) and Fourteenth Amendment (“14 th A mend .”) claims to resolve Eleventh Amendment (“11 th Amend.”) sovereign immunity raised by defendants Claims under the 14 th Amend abrogate sovereign immunity. See, Fitzpatrick v Bitzer 427 US 445, 622 (1976); See also, Nev. Dep’t of Human Res. V. Hibbs , 538 US 721, 962 - 963 (2003) Defendants asserted 11 th Amend. as a bar to this lawsuit brought under 42 USC §1983 and FLSA 29 USC §201 et seq and New York Labor Law 650. However, i n Hibbs , the Supreme Court held that although the F amily Medical Leave Act (“FMLA”) was enacted under the commerce clause, because Congress sought to enforce the equal protection provision of the 14 th Amend., to target gender discrimination, by enacting FMLA, 11 th Amend sovereign immunity was abrogated and did not bar suit in federal court for damages Nev. Dep’t of Human Res. V. Hibbs , 538 US 721, 962 (2003) The Court in Lugar explained, §1983 provides a remedy for deprivation of 14th Amen d. rights when that deprivation takes place “under color of any statute, ordinance, regulation, custom or usage” of a State.” Lugar v. Edmondson Oil Co . 457 US 922 3 On a motion to dismiss, the Court may consider documents that are incorporated by reference in the complaint along with alleged facts. See, DiFalco v. MSNBC Cable LLC , 622 F3d 104,111 (2d Cir. 2010) Even if the document is not incorporated by reference, the Court may consider documents that are integral to the complaint. Chambers v. Time Warner Inc. , 282 F3d 147, 153 (2d Cir. 2002) Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 19 of 36 15 (1982) In th is case, Plain tiffs brought their §1983 suit pursuant to deprivations of their equal protection and rights to liberty and property without due process under the 14 th Amed. SAC ⁋ 47 A lthough FLSA was enacted under the commerce clause, Plaintiffs seek 14 th amend equal protection or application of the FLSA and NYLL as it applies to all employees who work in NYS including civil service employees. Hibbs , 538 US 721, 962 (2003) SAC ⁋ 47, 92, 156 O n or about 2016, without legislative or executive authority of the Governor , defendant Giardina unlawfully declared Plaintiffs were “at will” employees in contravention of CSL §75. SAC ⁋ 92 This was “state action” taken by defendant Giardina from which further unlawful conduct “under color of law” by state officials or “state action” flowed, e.g. wage and hour violations in addition to discrimination in hiring, promotion, discharge and pre an d post discharge retaliation as set forth infra See, Lugar v. Edmondson Oil Co . 457 US 922 (1982) 4 On or about 2016, defendant Giardina failed to apply NYLL wage and hour standards when he increased Plaintiffs’ daily wage from $52 to $100 without rega rd to all hours of approximately 11 to 12 hours regularly worked by Plaintiffs in a work shift . SAC ⁋ 47 This state action caused the daily wage to fall far short of NY minimum wage SAC Plaintiffs’ §1983 claims based on 14 th Amend violations abrogated D efendants’ Eleventh Amendment (“11 th Amend”) sovereign immunity defense. See, Fitzpatrick v Bitzer 427 US 445, 622 (1976) See also, Nev. Dep’t of Human Res. V. Hibbs , 538 US 721, 962 - 963 (2003) More recently in Vega , the Second Circuit held that employment “retaliation claim[s] tied to a “deprivation of any rights, privileges, or immunities” under the Equal Protection Clause of the Fourteenth Amendment [are] actionable under [42 USC §1983]. Vega v. Hempstead Union 4 T he supreme court held in Lugar , “the relationship between the requirement of “state action” to establish a violation of the Fourteenth Amendment, and the requirement of action “under color of state law” to establish a right to recover under 42 USC §1983 are one and the same. Lugar v. Ed mondson Oil Co . 457 US 922 (1982) Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 20 of 36