Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 1 of 36 UNITED STATES DISTRICT COURT SOURTHERN DISTRICT OF NEW YORK ________________________________________________X DOROTHEA PERRY AND JEAN SEME INDEX NO. 21cv11967 (VEC) Plaintiffs, -against- NEW YORK STATE ATHLETIC COMMISSION, KIM SUMBLER, EXEC, DIR., NEW YORK STATE DEPARTMENT OF STATE and ANTHONY GIARDINA Defendants. _________________________________________________X PLAINTIFFS DOROTHEA PERRY AND JEAN SEME’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS NEW YORK STATE ATHLETIC COMMISSION, KIM SUMBLER, NEW YORK STATE DEPARTMENT OF STATE and ANTHONY GIARDINA’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1) and 12(b)(6) Susan Ghim Law Office of Susan Ghim Attorney for Plaintiffs 244 Fifth Avenue, Suite 1434 New York, NY 10001 (917) 549-4708 [email protected] Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 2 of 36 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--------------------------------------19 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 deprived 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-----------------------------------------29 VI. Conclusion-------------------------------------------------------------------------------------------30 i Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 3 of 36 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)------------------------- 14,15, 16 SECOND CIRCUIT Chambers v. Time Warner Inc., 282 F3d 147, 153 (2d Cir. 2002)-------------------------------------14 DiFalco v. MSNBC Cable LLC, 622 F3d 104,111 (2d Cir. 2010)-------------------------------------14 Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 178–79 (2d Cir. 2005)--------------------------28 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 UNITED STATES DISTRICT COURT, SDNY Ali v. Div. of State Athl.Com., 316 F.Supp. 1246, 1250 (SDNY 1970)------------------------16, 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 ii Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 4 of 36 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 STATUTES Constitutional Amendments Fourth Amendment--------------------------------------------------------------------------------------------23 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, 20,21, 23 New York Labor Law §650----------------------------------------------------------------------1 iii Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 5 of 36 4 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 6 of 36 Plaintiff Dorothea Perry (“Perry”) and Plaintff Jean Seme (“Seme”) (collectively, “Plaintiffs”) by and through their 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 Complaint (SAC) 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 claim of conspiracy pursuant to 42 USC §1985 for deprivation Plaintiffs of their rights under the Fourteenth Amendment to the US Constitution and laws. Plaintiffs withdraw application of 42 USC §1981 Plaintffs have pled prima facie claims as follows: I PRELIMINARY 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 Fair Labor Standards Act 29 USC §201 et seq. and the New York Labor Law §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 testimony 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 1 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 7 of 36 Herman, James Leary and Linda Baldwin were shown to have directly participated in the discharge and retaliation against Plaintiffs. Individual 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 Constitution and laws as guaranteed by the Fourteenth Amendment. The deprivation of Plaintiffs’ Fourteenth Amendment rights 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. The New York State Civil Service Law §75 (“CSL §75”) regulates all employment in service of New York State (“NYS”). Notwithstanding, defendants 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 defendants Giardina and Sumbler constituted actions “under color of law” or “state action for the purposes of the Fourteenth Amendment and 42 USC §1983. Defendants Giardina and Sumbler directly and actively participated in creating and maintaining a hostile work environment and discriminated against Plaintiffs based on race and gender and further to deprive 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 2017, Plaintiff Perry was denied a promotion by defendant Giardina, from inspector to deputy commissioner despite an exemplary 14 year work history as a NYSAC inspector, a four year 2 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 8 of 36 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 Garden (“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 backed away and refused physical contact with defendant 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 2015, then executive director David Berlin summarily rejected Plaintiff 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 assignments to televised boxing events David Berlin willfully removed Plaintiff Perry from assignment rotations altogether. 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 Sumbler 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 3 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 9 of 36 plaintiff Seme to confess to making threats he never made. Plaintiff Seme’s complaints were neither adequately investigated nor responded 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 Police at the behest of 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. Two New York City district attorney offices declined to investigate Plaintiff Seme, because they found “no crime” and “no threats” based on the false reports by NYS DOS officials, James Leary, defendant Sumbler, defendant Giardina and Brendan Fitzgerald. Notwithstanding, 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 not directed at any of them. According to NYS Police documents, 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 public venues but later conceded no threats were made. At all relevant times, it 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 2018 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 to date has not served Plaintiff Seme with notice and 4 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 10 of 36 opportunity to heard on an issuance or denial of his second license application. Since on or about 2017, defendant Sumbler has exercised complete, arbitrary and capricious authority over boxing licenses. 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 actors 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 conference 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] all named Defendants filed a motion to dismiss pursuant to FRCP 12 on or about 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 to documents produced by defendants and non party witnesses on or about October 2021 that are integral to the complaint. 5 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 11 of 36 Plaintiff Dorothea Perry (“Perry”) was employed as an 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 approximately $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 NYLL 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 NYS 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 6 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 12 of 36 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 consent 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 filings 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 Michael 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 However, 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 7 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 13 of 36 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 Room 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 Perry. 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 Gervonta 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 months 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 at 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, defendant Sumbler placed boxer Gervonta Davis’ life in danger while 8 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 14 of 36 he was en route to his after bout physical exam accompanied by Plaintiff Perry and Avery Browne, M.D. because she authorized 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 Avery 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 shouted 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 April 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 language interpreter, and instead assigned Luanna Ferreira to assign boxing gloves to boxers without any experience or training whatsoever. SAC⁋ 22, 23 When other NYSAC officials prevented the child from entering the ring, boxer Savi, 9 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 15 of 36 a Ghananian, 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 ringside 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. Barclays (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 defendant Sumbler discharged 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 and 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 American1 male or female inspectors or deputy commissioners. SAC⁋72 NYSAC inspector George Ward testified at his deposition under intimidation and threat of discharge2 on or 1 On 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 some 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 racial 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, 10 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 16 of 36 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 March 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 deputy commissioner Anthony Coraccia 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 Carrecia 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. Careccia’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] 11 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 17 of 36 or preparation work necessary for boxers. [Giardina Dep. Tr. ] After his discharge, Plaintiff Seme requested a hearing. SAC ⁋35 Plaintiff 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 fall/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 charges 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 NYSAC’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 12 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 18 of 36 York State on or about fall 2018 for fear of further harassment by defendant Sumbler. 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 call security again or the NYS Police. SAC ⁋183 Additionally, Defendant Giardina testified that he interviewed 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 fear 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 Standard 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 alleged 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 13 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 19 of 36 most favorable to plaintiff. Id. In this motion, based on documents and deposition testimony obtained during discovery which are extraneous documents but integral to the SAC3, Plaintiffs have surpassed the plausibility threshold standard. Accordingly, the court should deny Defendants’ motion to dismiss the SAC because Plaintiffs have sufficiently alleged plausible 14th amend. claims that abrogated sovereign immunity as set forth infra. Prima Facie Claims No Sovereign Immunity under 42 USC §1983 and Fourteenth Amendment Plaintiffs first address their 42 USC §1983 (Fifth Cause of Action) and Fourteenth Amendment (“14th Amend.”) claims to resolve Eleventh Amendment (“11th Amend.”) sovereign immunity raised by defendants. Claims under the 14th 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 11th 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, in Hibbs, the Supreme Court held that although the Family Medical Leave Act (“FMLA”) was enacted under the commerce clause, because Congress sought to enforce the equal protection provision of the 14th Amend., to target gender discrimination, by enacting FMLA, 11th 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 Amend. 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) 14 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 20 of 36 (1982) In this case, Plaintiffs brought their §1983 suit pursuant to deprivations of their equal protection and rights to liberty and property without due process under the 14th Amed. SAC ⁋47 Although FLSA was enacted under the commerce clause, Plaintiffs seek 14th 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 On 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 and post discharge retaliation as set forth 4 infra. See, Lugar v. Edmondson Oil Co. 457 US 922 (1982) 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 regard 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 14th Amend violations abrogated Defendants’ Eleventh Amendment (“11th 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 The 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. Edmondson Oil Co. 457 US 922 (1982) 15 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 21 of 36 Free Sch. Dist. 801 F3d 72, 80-81 (2d Cir. 2015) Throughout the SAC, Plaintiffs alleged that their non-AA counterparts were not reprimanded or discharged for the same or worse conduct that they were each falsely accused of. SAC ⁋19-23, 26, 27, 32, 35, 48-50, 134, 171. In Ali, this court decided that Plaintiff Ali, was denied equal protection guaranteed by the Fourteenth Amendment and 42 USC §1983 under NYSAC’s regulations for licensing boxers. See, Ali v. Div. of State Athl.Com., 316 F.Supp. 1246, 1250 (SDNY 1970) The Ali court stated, “[a]lthough the state possesses broad powers to regulate boxing, however, it may not exercise those powers in such a way as to deny to an applicant the equal protection of the state’s laws which is guaranteed to him by the Fourteenth Amendment. A deliberate and arbitrary discrimination or inequality in the exercise of regulatory power, not based upon differences that are reasonably related to the lawful purposes of such regulation, violates the Fourteenth Amendment.” Ali v. State, 316 F.Supp. 1246, 1250 This court explained, “[i]n determining whether there has been such an arbitrary denial of equal protection, the acts of …”Athletic Commission or similar agency are deemed to be those of the state itself.” Id. The court further explained, “[i]n short, the exercise of state power by a state agency in the issuance or refusal of licenses to engage in regulated activity should not represent the exercise of mere personal whim, caprice or prejudice on the part of such agency… constitutionally must, have some rational basis.” Id. In Plaintiff Ali’s case, the court found, “[a]lthough ample opportunity has been afforded to the Commission, we have not received evidence of any instances where licenses have been denied by the Commission because of an applicant’s conviction or his criminial activities…examination of the Commission’s records strongly suggest that the general standard by which the Commission evaluates such applications was abandoned only in Ali’s case…the Commission granted a boxing license to a parolee who had been convicted of three felonies, attempted robbery….35 licenses were granted to felons and 16 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 22 of 36 misdemeanants in 1968 and 1969.” Id. In the case at bar, former executive director David Berlin’s summary rejection of Plaintiff Perry’s application for a NYS boxing judge license in 2015 and continuing refusal by NYSAC to consider Plaintiff Perry’s application was arbitrary and capricious. SAC ⁋134 David Berlin and James Leary, the assistant deputy secretary of state, raised the 2 year ban regulation that prohibited officials at NYSAC from working with promotors within 2 years of resignation from NYSAC. SAC ⁋160 However, Plaintiff Perry never worked for or had any intention of working for a promoter. SAC ⁋171 Importantly, Berlin and Leary’s 2 year ban regulation did not apply to non-AA inspectors and employees. SAC⁋134,171 On or about 2017, NYSAC inspector Joe Schaefer resigned and went to work directly for promotor Evander Holyfield along with executive director Eric Bentley. SAC ⁋134, 171 David Berlin, also a non- black employee, went to work right after his departure from NYSAC on or about 2016 to work directly for a promoter5. On or about April 2018, NYSAC arbitrarily and capriciously denied Plaintiff Seme’s application for a Second license to enter into contracts with boxers as a trainer or “second.” SAC ⁋ NYSAC’s own document production revealed that they were in receipt of Plaintiff Seme’s boxing license however, defendant Sumbler failed to provide Plaintiff Seme with any due process notice of whether the license would issue or be denied. SAC ⁋168, 171, 174, 182 This due process and equal protection violation continues to date. SAC ⁋182, 183 Based on supreme court, second circuit and this court’s precedent, Defendants’ motion to dismiss this lawsuit for lack of subject matter jurisdiction based on sovereign immunity pursuant to FRCP 12(b)(1) should be denied. 5 D. Berlin was attorney of record for client promoter, Star of David, Inc. vs. Miller 656445/2016 NYS SCT, NY Cty. 17 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 23 of 36 B. Statute of Limitations The statute of limitations on a §1983 claim is three (3) years from the date the claim accrued. Vega v. Hempstead, 801 F3d 72, 79 (2d Cir. 2015) In a wrongful termination claim, the claim accrues from date of discharge. Id. However, where there are claims of post-discharge retaliation, each act of retaliation is a discrete act. Id. Moreover, when retaliation is part of an ongoing practice or pattern of misconduct against the plaintiff, the entire pattern and practice of misconduct is timely as long as the last discrete act of misconduct occurred within the statutory time period. Id. at 79, 82 Hostile work environment claims may cover conduct that occur before the statutory time period as long as an act contributing to the hostile work environment occurs within the limitations period. See,Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011); accord Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, (2002) As pled throughout the SAC, and set forth infra, each act of the individual defendant state officials in depriving Plaintiffs’ 14th Amend. guarantees occurred within an ongoing practice of discrimination, harassment and retaliation that continue to date. SAC ⁋ 13, 17, 52, 107, 154, 162, 179, 180 Plaintiff Perry’s discharge on or about April 25, 2018 which was within the three year statutory time period as this lawsuit was commenced with the filing of a Complaint on or about March 6, 2021. [ECF doc. no. 1] Plaintiff Perry discovered affirmative action officer Maria Herman concealed her EEO claims against the named defendants on or about October 11, 2021. [Ghim Atty Decl. Ex. F] Since on or about April 2018, Defendant Sumbler’s threats of use of security or police force as retaliation against Plaintiff Perry continues to date. SAC ⁋ 140 Plaintiff Seme was discharged on or about March 17, 2017 however, defendants continuously retaliated against him throughout 2017, 2018 and to date, for requesting a hearing on his discharge. SAC⁋ 165, 167, 173 Instead of a hearing, defendants falsely reported the crime of 18 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 24 of 36 aggravated harassment against Plaintiff Seme and sent NYS Police to his him to coerce him to admit he made a bomb threat. SAC ⁋ 132, 165 Plaintiff Seme requested a hearing on his discharge to defendant Giardina on March 17, 2017 and on or about March 23, 2017 sent an email to Maria Herman and Secretary of State Rosanne Rosado to request a hearing. SAC ⁋ 132, 165 [Ghim Decl. Ex. E] According to NYS Police documents, the last act of retaliation recorded against Plaintiff Seme was on or about June 2018. [Ghim Decl. Ex. C] Based on retaliation by use of police since 2017, Plaintiff Seme was in constant fear of further retaliation. SAC ⁋ On or about April 2018, Plaintiff Seme also applied for a second or trainer license to enter into contracts with boxers. NYSAC acknowledged receipt of his application but have not responded to date. SAC With the constant fear of retaliation and all opportunities in NYS in boxing foreclosed, Plaintiff Seme left the state on or about fall 2018. SAC⁋ 165, 182 [Ghim Decl. Ex. C and D] C. Plaintiffs’ §1983 and Fourteenth Amendment Claims 42 USC §1983 states in pertinent part, “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, subjects, or causes to be subjected, any citizen of the United States…within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…” The Fourteenth Amendment to the United States constitution states in relevant part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” For a violation of §1983 and the fourteenth amendment which is directed at the states, there must be state action by a state actor. Lugar v. Edmondson Oil Co. 457 US 922, 924, 928-929 (1982) The inquiry is whether there was an “exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.” Id. at 937. A state actor is “a state official” or one who “has acted together or has obtained significant 19 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 25 of 36 aid from state officials, or because his conduct is otherwise chargeable to the State. Id at 937 There is no dispute individual defendants Giardina and Sumbler were state officials during on or about 2016 to date. Defendant Sumbler is currently the executive director of NYSAC. Defendant Giardina was transferred from his employment as assistant deputy secretary of state in 2016 to a lower position of “acting executive director” at NYSAC and on or about 2017 was transferred from “acting executive director” at NYSAC to his current administrative position at the NYS tax appeals tribunal. [Giardina Dep. Tr. ] A defendant is personally liable in a §1983 claim if he (1) “participated directly in the alleged constitutional violation;” (2) “after being informed of the violation through a report or appeal, failed to remedy the wrong;” (3) “created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom;” (4) “was grossly negligent in supervising subordinates who committed the wrongful acts;” or (5) “exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring.” See, Burhans v. Lopez 24 F.Supp 3d 375, 281 (SDNY, 2014) citing Grullon v. City of New Haven, 720 F3d 133, 139 (2d Cir. 2013) Defendants Giardina, Sumbler, James Leary, Linda Baldwin, Maria Herman and Brendan Fitzgerald (deceased end of 2018) were state officials who participated directly in the discrimination, harassment, retaliation and discharge of both Plaintiffs at various times, as set forth infra. All of these state officials “exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring” and with the exception of deceased state official Fitzgerald, should be held personally and individually liable for damages to Plaintiffs. Id. Deprivation of Plaintiffs’ Fourteenth Amendment Rights: equal protection and due process under CSL §75 or State Action by Individual Defendants 20 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 26 of 36 The New York State Civil Service Law (“CSL”) and the Rules and Regulations promulgated there under, implement the mandate of the NYS Constitution, which states in relevant part, “Appointments and promotions in the civil service of the State and all of the civil divisions thereof, …shall be made according to merit and fitness to be ascertained, as far as practicable by examination…” Art. V, sec. 6 NYS Constitution NYS CSL §75 states in relevant part, “ A person described in…paragraph (c)…of this subdivision shall not be removed or otherwise subjected to any disciplinary penalty …except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section.” Paragraph (c) states in relevant part, “an employee holding a position in the non-competitive or labor class…” There is no dispute that Plaintiff Perry was appointed to her position as a NYSAC inspector on or about 2004. There is no dispute that Plaintiff Seme was appointed to his position as a NYSAC inspector on or about 2015. There is no dispute that both Plaintiffs were inspectors, or labor class employees pursuant to CSL §436. There is no dispute that NYSAC inspectors were not at any relevant time represented by a public employees’ union or collective bargaining representative. Therefore, at all relevant times, the discipline and removal provisions of CSL §75.2 applied to both Plaintiffs which states in pertinent part, “…A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing.” Neither of Plaintiffs in this case were ever served with charges of misconduct in writing and afforded an opportunity to respond to any charges in writing. CSL 75.2 further states in relevant part, “ …The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred…” Neither of Plaintiffs were ever provided with a hearing or any notice of their rights to a hearing regarding any charges of misconduct or their respective discharge from employment. CSL 75.2 6 CSL 43 states in relevant part, “The labor class shall comprise all unskilled laborers in the service of the state and each of its civil divisions…” 21 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 27 of 36 further states, “…The person or persons holding such hearing shall, upon the request of the person against whom charges are preferred, permit him to be represented by counsel…” At no relevant time were either of Plaintiffs afforded an opportunity to appear at a hearing with counsel or representative of a recognized or certified employee organization of their choice. After the boxing event on March 17, 2017 at Madison Square Garden (“MSG”), defendant Giardina convened a meeting with Plaintiff Seme to blame and discharge him for deputy commissioner Anthony Carrecia’s failure to obtain a pre-bout medical examination for boxer Jhovanny Collado. SAC ⁋31, 32 Defendant Giardina’s actions violated and deprived Plaintiff Seme of equal protection under CSL §75.2 as other civil service employees because: 1) Plaintiff Seme was not served with notice in writing of the charge concerning boxer Collado’s pre-bout medical exam; and 2) Plaintiff Seme was not provided at least eight (8) days to respond to such charge; and 3) Plaintiff Seme was not served any notice of this meeting and afforded the right to counsel to appear at the meeting. SAC ⁋32 When Plaintiff Seme emailed a complaint on or about March 21, 2017 to request a hearing on his discharge to Secretary of State Rosanne Rosado and affirmative action officer Maria Herman, both officials deprived Plaintiff Seme of his due process rights for notice and hearing of charges of misconduct or incompetency and/or discharge under the state constitution and CSL §75 concerning his discharge. SAC⁋35 Similarly, when Plaintiff Perry was discharged in 2018, defendant Sumbler violated CSL 75 and deprived Plaintiff Perry of her right to due process notice and hearing on her charges and discharge and equal protection under CSL §75 as other civil service employees. SAC ⁋18, 154-157 E. Hostile Work Environment, Harassment, Discharge and Retaliation Claims pursuant to §1983 Concerning Plaintiffs’ unlawful discharge, employment discrimination and retaliation by NYSAC, Plaintiffs brought their respective claims under §1983 and the fourteenth amendment equal protection clause. Once state action is established, the §1983 claim tracks a title VII claim. 22 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 28 of 36 Vega, 801 F3d 72, 82(2d Cir. 2015) The Vega Court stated, “once the color of state law requirement is met…an equal protection claim parallels [a plaintiff’s Title VII claim.” Id. As set forth supra, defendants Giardina and Sumbler, James Leary, Maria Herman and Linda Baldwin, all state officials, directly participated in depriving Plaintiffs’ of their rights and protections guaranteed by the equal protection clause of the Fourteenth Amendment. These state officials acted under color of state law, e.g. CSL §75, NYSAC Inspector Manual, boxing licensing regulations, the 2 year ban concerning employment with boxing promotors SAC ⁋ 160 Moreover, at the pre-answer motion to dismiss stage, a plaintiff is not required to plead a prima facie claim under the McDonnell Douglas standard “because it is an evidentiary standard, not a pleading requirement.” See, Vega 801 F3d 72, 83 (2d Cir. 2015) Additionally, “it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case. Id. Therefore, a plaintiff is required to “assert nonconclusory factual matter sufficient to “nudge…claims….across the line from conceivable to plausible.” Id at 84 Plaintiffs in the case at bar have adequately alleged more than plausible factual matter as this opposition relied on documents and deposition testimony that converted Plaintiffs’ allegations from plausible to material facts sufficient to support their claims. 1. Plaintiff Seme was deprived of his Fourteenth Amendment right to liberty and Fourth7 Amendment right against unreasonable search and seizure when Defendants Sumbler, Giardina and James Leary made false reports8 to NYS Troopers of a crime against Plaintiff Seme without 7 The Fourth Amendment to the US Constitution states in relevant part, “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 8 Ghim Decl. Ex. C 23 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 29 of 36 reasonable suspicion or probable cause that the crime of aggravatated harassment occurred. These false reports by defendants were in retaliation for Plaintiff Seme’s request to defendant Giardina, Maria Herman and SOS Rosado for a hearing on his discharge. SAC ⁋64, 131, 132. NYS Trooper Sands’ notes from his interview of defendant Giardina on or about March 21, 2017 stated, “Mr. Giardina stated [Seme] did not say anything threatening.” [Ex. C, p.3] Notwithstanding, according to NYS Trooper Sands’ notes, on “03/21/2017 Investigators Sands and Bode patrolled to the residence of Jean Seme…” Id. On or about March 20, 2017, NYS Trooper Sands contacted the Bronx District Attorney’s office and the Manhattan District Attorneys office and both declined to investigate the matter against Plaintiff Seme as there was no specific threat made against anyone.9 [Ex.C p 4] Notwithstanding, NYS Trooper Sands wrote in his file, “On 06/01/17, I along with Investigator John Bode and Al Vasquez attempted to locate and follow up with SEME.” On or about June 13, 2017, Sands’ notes stated, “due to lack of any development, reports of any contact this case will be closed.” [Ex.C p 5] On or about March 9, 2018, Sumbler again, falsely reported the crime of aggravated harassment against Seme while he was lawfully and peacefully present at a public event at Kings Theater in Brooklyn, NY. [Ex. C, p 7] Defendant Sumbler approached Plaintiff Seme and harassed and threatened Plaintiff Seme with police action simply because she did not want him there. [Ex. C p7] Mr. Vasquez referred to in Sands’ notes had on multiple occasions referred to Plaintiff Perry as the “N” word racial slur [Ex. H, Ward Dep. Tr. 79-80] It was open and notorious that Mr. Vasquez harbored a racial animus towards African Americans and his and defendant Sumbler’s account of “louder and took a squared-off stance threatening stance” were wholly fabricated as Sands’ notes stated, “No threats were made during 9 NYS Trooper Sands conveyed that two District Attorneys offices advised that there was “no crime” and “no threats” made by Seme to James Leary and Brendan Fitzgerald. Sands’ April 27, 2017 notes stated, “According to Mr. Fitzgerald there have been no threats made by SEME” 24 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 30 of 36 this conversation.” [Ex. C, p.7 ] Notwithstanding these false reports, Sands performed a criminal background check on Plaintiff Seme which revealed Plaintiff Seme had “no criminal history” and a driver’s license check without reasonable or probable cause that a crime ensued or would ensue. [Ex.C p/7 ] And again, Sands returned to Plaintiff Seme’s home on or about April 11, 2018. ID. Again, on or about April 13, 2018, Sands closed the matter and his notes stated, “I advised, [Fitzgerald] that no crimes have been committed, no criminal charges can be filed against Mr. Seme…that if they did not want Mr. Seme to be in the building, he should be officially banned from these events in writing.” [Ex.C p. 7-8] By the end of 2018 after Sumbler attempted to have Plaintiff Seme falsely charged with a crime, and failed to issue his second license, Plaintiff Seme left NYS in fear of further retaliation. SAC⁋177, 179, 180, Plaintiff Seme has sufficiently pled a plausible claim that defendants acted in concert with one another to deprive him of his Fourteenth and Fourth Amendment rights. 2. Sexual Harassment of Plaintiff Perry on or about March 17, 2017. Plaintiff Perry alleged that defendant Giardina sexually harassed her on March 17, 2017 by asking for a hug. SAC ⁋ 69 The Second Circuit has held, “Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment…” See Redd v. New York Div of Parole, 678 F3d 166, 179- 181 (2d Cir. 2012) Plaintiff Perry backed away from defendant Giardina and was horrified at the prospect of physical contact with defendant Giardina. SAC ⁋ 148 This sexual and racial harassment was concurrent with and continued through the date of Plaintiff Perry’s discharge in 2018, by deputy commissioner Frank Vasquez whom defendant Giardina promoted to deputy commissioner over Plaintiff Perry in 2017. SAC⁋ 27, 136, 148, 153. Frank Vasquez also referred to Plaintiff Perry as a “N” Word, the racial slur used against African Americans and the misogynistic slur “c**t” in the presence of other inspectors. [Ex. H Ward Tr.79-80] Even though 25 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 31 of 36 the slurs were not made in Plaintiff Perry’s presence, it was sufficient to establish a hostile work environment when she learned of Frank Vasquez’ conduct/statements on or about October 12, 2021 at the deposition of George Ward. See Torres v. Pisano, 116 F.3d 625, 633 (2d Cir. 1997) Plaintiff Perry also alleged that defendant Giardina did not request hugs from white female employees. SAC ⁋148 And Maria Herman found the allegation unsubstantiated. SAC ⁋69 However, defendant Giardina told her to “sit in the back out of sight at boxing events” and he denied Plaintiff Perry’s promotion because she lacked good judgment despite an exemplary employment record SAC ⁋145-150. The totality of Plaintiff Perry’s work environment under the supervision of defendant Giardina and Frank Vasquez was sufficiently severe and/or pervasive that caused Plaintiff Perry to suffer humiliation and degradation as well as the loss of a promotion from inspector to deputy commissioner. SAC ⁋145-150 See, Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997); accord Redd, 678 F.3d 166, 176 (2d Cir. 2012) The standard for gender based hostile work environment is whether it was severe or pervasive, not severe and pervasive to have altered a plaintiff’s working conditions for the worse. See, Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 119 (2d Cir. 2010) See Also, Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) Plaintiff Perry however, has alleged both severe and pervasive. SAC ⁋145-150 At a deposition held on October 22, 2021, defendant Giardina testified that he did not hug other male or female employees and he saw Plaintiff Perry back away from him and she appeared very uncomfortable when he extended his arms to hug her. Defendant Giardina further testified that Plaintiff Perry should have called the police as she appeared uncomfortable and threatened. Defendant Giardina also followed through on the discrimination and harassment of Plaintiff Perry from former executive director David Berlin who remained in contact with 26 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 32 of 36 Defendant Giardina on or about since on or about 2016. During 2015 and 2016, David Berlin was focused on obstructing Plaintiff Perry’s advancement and opportunities in boxing. On or about 2015, David Berlin summarily rejected Plaintiff Perry’s application for a boxing judge license citing a two (2) year ban regulation that required NYSAC employees to have resigned from their position, waited 2 years before applying for a boxing judge license. SAC ⁋171 Concurrently, James Leary, the current assistant deputy secretary of state also demanded that Plaintiff Perry resign as an inspector citing the two year ban regulation and her work as a boxing judge in the state of Virginia. SAC⁋ 161 However, Plaintiff Perry replied to James Leary clarifying that the two year ban concerned working for a promoter prior to a two year separation period with NYSAC and she never worked for any promotor. SAC ⁋161 After this clarification, James Leary retracted or walked back his demand for Plaintiff Perry to quit. Id. However, James Leary never took issue concerning the 2 year ban and other NYSAC employees, such as former executive Directors David Berlin, Eric Bentley and former inspector Joe Schaefer, both non-AA men who went to work for Real Deal promotions and Evander Hoyfield promptly after they both resigned from NYSAC on or about 2017. SAC ⁋171 3. POST-DISCHARGE RETALIATION CLAIMS under §1983 The Supreme Court has held that protections against retaliation extend “beyond workplace- related or employment related retaliatory acts and harms. See, Burlington N. & Santa Fe Ry. Co. v. White, 548 US 53, 67 (2006) An adverse employment action in the context of a retaliation claim is any action that is “harmful to the point that [the action] could well dissuade a reasonable worker from making or supporting a charge of discrimination. Id. It is not necessary for such action to affect the terms or conditions of employment but rather the “scope of antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” Id. An employer’s retaliatory conduct may include blacklisting an employee, disseminating an 27 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 33 of 36 employee’s confidential or sensitive information or making undesirable public statements about an employee. See Lore v. City of Syracuse, 670 F.3d 127,167 (2d Cir. 2012) (A jury verdict was upheld on retaliation claim based on negative public statements made about plaintiff); See also, Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 178–79 (2d Cir. 2005) (The court decided that employer’s false statement made to plaintiff’s prospective employer was retaliatory adverse action because it could have potentially lead to denial of employment) Based on the deposition of Giardina, Plaintiff Perry pled in the TAC that Giardina leaked her personnel file to reporter Tom Hauser who wrote negative articles about Plaintiff Perry in online trade news sites. SAC ⁋ 70, 71, 178 Defendant Giardina testified at his deposition on October 22, 2021 that he did interview with Tom Hauser on at least several occasions. As set forth supra, defendant Sumbler’s harassment of Plaintiff Seme by and through the New York State Police file continued from his termination on or about March 17, 2017 through 2018 until Plaintiff Seme left NYS. Threats of false reports of a crime made by defendant Sumbler against Plaintiff Seme continue to date. Plaintiff Seme has been unable to return to his home state of New York since childhood, for fear of continuing harassment and retaliation by the NYS Police at the behest of defendant Sumbler. SAC ⁋39, 180 Plaintiff Perry was retaliated against in 2017 when defendant Giardina denied her promotion from inspector to deputy commissioner. SAC ⁋ 50, 107, 136, 145, 149, 150, 172 Defendant Giardina retaliated against Plaintiff Perry for her prior complaints of racial discrimination against former executive director David Berlin10 because he took Plaintiff Perry’s 10 David Berlin returned Plaintiff Perry’s boxing judge application citing the two year ban. James Leary also demanded that Plaintiff Perry resign when she applied for the boxing judge license. Defendant Giardina testified at his deposition that he communicated with David Berlin about Dorothea Perry’s application for promotion from inspector to deputy commissioner. Ex. 28 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 34 of 36 out of work assignment rotation and gave sought after televised event assignments to non-black women, specifically David Berlin’s personal friend Sue Etkin. SAC ⁋72 At the time Plaintiff Perry applied for the promotion, she was the sole AA female inspector, she possessed the highest level of education, a four year college degree, an exemplary employment record and over a decade of experience as an inspector with recommendations from supervisors. SAC⁋ 145, 150 Instead, approximately eight (8) non-African American men with no more than a high school diploma and less years of experience and qualifications than Plaintiff Perry were hired or promoted over her as deputy commissioners. SAC ⁋149, 150 One of those non-black men was Frank Vasquez who referred to Plaintiff Perry as the “N” word or racial slur against African Americans and the misogynistic slur “c**t” on multiple occasions in front of other NYSAC employees. SAC ⁋145 During the application phase for this promotion on or about 2017, defendant Sumbler recommended Frank Vasquez for promotion to deputy commissioner and defendant Giardina approved this promotion. SAC⁋ 27 On March 17, 2017, defendant Giardina sexually harassed Plaintiff Perry. SAC ⁋ 69, 148 To date, NYSAC has failed to produce requested acknowledgments that NYSAC staff have completed equal employment opportunity training on discrimination and harassment as well as workplace violence. SAC ⁋72 V. Plaintiffs’ Request for Leave to File a Third Amended Complaint FRCP 15(a) states in relevant part, leave to amend a complaint “shall be freely given when justice so requires.” In the absence of “futility, bad faith, undue delay or undue prejudice to the opposing party” leave to amend the pleadings should be granted. See, e.g. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-201 (2d Cir. 2007) Plaintiffs seek leave to file the proposed Third Amended Complaint (“TAC”) [Ghim Decl. Ex. B ] to add James Leary, Maria Herman and Linda Baldwin as individual defendants. As set forth throughout this brief based on documents and testimony produced during discovery, two or more of them agreed with named defendants 29 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 35 of 36 Giardina and Sumbler to conspire with each other, at various times to discriminate against, harass, retaliate and discharge each of Plaintiffs pursuant to 42 USC 1985 (3) 11 There would be no prejudice or surprise to defendants as these proposed defendants were always on notice of their own conduct and concealed or withheld relevant documents to prevent Plaintiffs from discovering claims against them. As set forth throughout the SAC this brief, Plaintiffs’ requests for hearings immediately after their discharge for information and hearings went ignored by NYSDOS officials. Document production in this case on or about October 2021 revealed for the first time, the direct involvement and participation of James Leary, Linda Baldwin and Maria Herman in each of Plaintiffs’ discharge and pre and post discharge retaliation against each of Plaintiffs. Accordingly, Plaintiffs seek redress and damages against any one or more of them including named defendants Giardina and Sumbler pursuant to 42 USC 1985(3). VI. Conclusion Based on the foregoing, Plaintiffs respectfully request that the Court: 1) deny in whole or in part named Defendants’ FRCP 12(b)(1) and (6) motions to dismiss the SAC; and 2) grant leave to file a TAC to add claims under 42 USC 1985 and add as defendants Maria Herman, James Leary and Linda Baldwin; and 3) any and all further relief as this Court deems just and proper. 11 42 USC 1985 (3) states in pertinent part, “If two or more persons in any State…conspire…for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State…from giving or securing to all persons within such State…the equal protection of the laws…in any case of conspiracy set forth in this section, of one or more persons engaged therein do or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.” 30 Case 1:21-cv-01967-VEC Document 42 Filed 11/05/21 Page 36 of 36 Dated: New York, NY November 5, 2021 Respectfully submitted, /s/ Susan Ghim _____________________ Law Office of Susan Ghim 244 Fifth Avenue, Suite 1434 New York, NY 10001 (917) 549-4708 [email protected] TO: Via ECF Lisa Joslin, Esq. Nancy Williamson, Esq. Gleason, Dunn et al. Attorneys for all named Defendants 31
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