163 F. Supp. 3d 1
E.D.N.Y.2016Background
- Nicole Corrado, a UCS Principal Attorney in the First Department DDC, alleged sexual harassment by coworkers (Bratton and Raniere) from ~2003–2008 and repeated internal complaints beginning in 2008; she took a prolonged medical leave (2009–2011) and an FMLA leave in March 2013.
- After reporting harassment, Corrado alleges a campaign of retaliatory monitoring, negative performance evaluations, counseling orders, and an ethics inquiry into her outside counsel; she resigned in August 2013, alleging constructive discharge.
- Corrado filed suit against UCS in 2012 and moved to amend to add eight individual defendants (judges, counsel, DDC supervisors) in late 2013; the operative Amended Complaint asserts claims under Title VII, NYSHRL, NYCHRL, FMLA, and state tort law.
- Two motions to dismiss followed from the individual defendants (including jurisdiction/service challenges by Reardon and a separate motion by Raniere). The court resolves timeliness, service, and pleading sufficiency issues.
- The court (Irizarry, J.): (i) dismissed Raniere and Friedberg in full as time‑barred; (ii) dismissed Claims 5 (NYCHRL FMLA retaliation), 6 (negligent supervision), and 7 (IIED) against all individuals; (iii) dismissed individual liability for the underlying sexual‑harassment/aiding‑and‑abetting allegations (Claims 2 & 3) as time‑barred; and (iv) allowed to proceed against six remaining individuals (Gonzalez, McConnell, Reardon, Dopico, Christmas, Goldstein) Claim 4 (FMLA retaliation) and the retaliation portions of Claims 2 and 3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service and personal jurisdiction as to Reardon (Rule 12(b)(2),(5) & 4(m)) | Service attempts were made in Dec. 2014 and March 2015; plaintiff sought to cure defects and argued diligence | Reardon disputed December service was proper and argued March service was untimely (beyond 120 days) | Court found good cause to extend Rule 4(m), March 6 service effective; Reardon not dismissed for lack of service or jurisdiction |
| Application of law‑of‑the‑case from magistrate judge’s futility order to bar new 12(b)(6) arguments (Raniere) | Magistrate’s Sept. 15 futility analysis used 12(b)(6) standard; plaintiff argued defendants should be precluded from re‑litigating those issues | Defendants argued they were not parties when magistrate ruled and may raise defense now | Court declined to apply law of the case because the Individual Defendants lacked a full and fair opportunity to litigate before they were joined |
| Timeliness of claims against Raniere and Friedberg (statute of limitations / continuing violation) | Corrado argued some acts (ethics investigation, ongoing effects) fall within limitations or are part of a continuing violation | Defendants argued alleged harassment ended by 2008 and the last alleged acts were before the statutory periods; continuing‑violation doctrine inapplicable to discrete acts | Court held all claims against Raniere and Friedberg time‑barred; continuing‑violation doctrine did not save untimely discrete acts; dismissed them with prejudice |
| Viability of individual claims against remaining defendants: (a) sexual harassment/aiding & abetting (Claims 2 & 3); (b) retaliation under NYSHRL/NYCHRL; (c) FMLA retaliation (Claim 4); (d) NYCHRL FMLA retaliation (Claim 5); (e) negligent supervision (Claim 6); (f) IIED (Claim 7) | Corrado argued later 2013 acts (negative review, counseling) constitute retaliation tied to earlier protected complaints and FMLA leave; alleged individuals had supervisory/disciplinary authority | Defendants argued most harassment and aiding/abetting claims are time‑barred; FMLA claims cannot be asserted against individuals who are not employers; negligent supervision preempted by Workers' Comp; IIED allegations not outrageous enough; NYCHRL does not protect merely taking FMLA leave | Court dismissed individual liability for the underlying sexual harassment (Claims 2 & 3) as time‑barred but allowed the 2013 retaliation allegations under Claims 2 & 3 to proceed; denied dismissal of Claim 4 (FMLA retaliation) as plausibly pleaded against individuals (including McConnell and Reardon); dismissed Claim 5 (NYCHRL FMLA retaliation), Claim 6 (negligent supervision), and Claim 7 (IIED) with prejudice |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: courts accept facts but not legal conclusions; plausibility requirement)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must allege plausible claim, not merely conceivable)
- National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (discrete discriminatory acts are not saved by continuing‑violation doctrine)
- Potenza v. City of New York, 365 F.3d 165 (2d Cir. 2004) (FMLA retaliation prima facie elements)
- Zheng v. Liberty Apparel Co., Inc., 355 F.3d 61 (2d Cir. 2003) (application of economic‑reality test to employer status)
- Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200 (2d Cir. 2002) (law‑of‑the‑case doctrine requires prior full and fair opportunity to litigate)
- Carr v. United States, 557 F.3d 93 (2d Cir. 2009) (law‑of‑the‑case principle explained)
- Firestone v. Berrios, 42 F. Supp. 3d 403 (E.D.N.Y. 2013) (discussion of when a prior futility/12(b)(6) determination may bind later review)
- Old Republic Ins. Co. v. Pacific Fin. Servs. of Am., Inc., 301 F.3d 54 (2d Cir. 2002) (process‑server affidavit creates a presumption of proper service; rebuttable by defendant’s affidavit)