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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ________________________________________ LISA SPRADA, Plaintiff, vs. TOWN OF CHEEKTOWAGA, Defendant. _________________________________________ Civil Action No. 1:13-CV-00985-A

MEMORANDUM OF LAW OF DEFENDANT TOWN OF CHEEKTOWAGA IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE

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TABLE OF CONTENTS Page I. PRELIMINARY STATEMENT .........................................................................................1  A.  B.  C.  II. III. Introduction. .............................................................................................................1  Procedural Background. ...........................................................................................1  Grounds for Motion. ................................................................................................2 

DISMISSAL STANDARD..................................................................................................3  IN RULING ON THE SUBJECT RULE 12(b)(6) MOTION, THE COURT MAY CONSIDER DOCUMENTS REFERENCED IN OR RELIED UPON IN THE PREPARATION OF THE COMPLAINT ...........................................................................4  ARGUMENT .......................................................................................................................7  POINT I THE FIRST CAUSE OF ACTION (DISCRIMINATION) SHOULD BE DISMISSED BECAUSE SPRADA CANNOT ALLEGE THAT THE TOWN WAS NEGLIGENT IN THE HANDLING OF HER COMPLAINTS. ......................................................7  A.  B.  POINT II The Town Provided a Reasonable Avenue for Complaint. .............8  The Town Was Not Negligent in Responding to Sprada’s Complaints. ......................................................................................9 

IV.

THE SECOND CAUSE OF ACTION (RETALIATION) SHOULD BE DISMISSED BECAUSE THE TOWN HAS NOT TAKEN ANY ADVERSE EMPLOYMENT ACTION AGAINST SPRADA. ...................................................................................................15  SPRADA MAY NOT CLAIM PUNITIVE DAMAGES. .........................17  THE COMPLAINT CONTAINS REPULSIVE LANGUAGE CONCERNING NON-PARTIES AND DETRACTS FROM THIS COURT’S DIGNITY. ................................................................................17 

POINT III POINT IV

V.

CONCLUSION ..................................................................................................................20 

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TABLE OF AUTHORITIES Page CASES Adam v. Northstar Location Servs., LLC, No. 09-cv-10632010 ................................................................................................................18 Avgerinos v. Palmyra-Macedon Cent. Sch. Dist., 690 F. Supp.2d 115 (W.D.N.Y. 2010) .......................................................................................4 Begay v. Public Serv. Co. of N.M., 710 F. Supp. 2d 1161 (D.N.M. 2010) ......................................................................................18 Bell Atlantic Corp. v. Twombly, 550 U.S. 545 (2007) ...............................................................................................................3, 4 Britt v. Buffalo Mun. Hous. Auth., No. 06-cv-00575 (SR), 2008 WL 4501929 (W.D.N.Y. 2008) ................................................18 Brown v. Baldwin Free Sch. Dist., 603 F. Supp. 2d 509 (E.D.N.Y. 2009) .....................................................................................17 Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) .................................................................................................................14 Ceglia v. Zuckerberg, No. 10-cv-00569(F), 2012 WL 503810 (W.D.N.Y. Feb. 14, 2012) ........................................19 Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002), remanded to No. 00-cv-2839, 2003 WL 749422 (S.D.N.Y. Mar. 5, 2003) ............................................................................................................4 City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) .................................................................................................................17 Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992) .............................................4, 7 Cruz v. Coach Stores, Inc., No. 96 civ. 8099 (JSR), 1997 WL 598462 (S.D.N.Y. Sept. 25, 1997), aff’d, 202 F.3d 560 (2d Cir. 2000) ....................................................................................................................16 Danieu v. Teamsters Local 264, No. 08-cv-005005, 2011 WL 1259839, a *7 (W.D.N.Y. Mar. 31, 2011) ...............................16

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Davis v. Verizon Wireless, 389 F. Supp. 2d 458 (W.D.N.Y. 2005) ....................................................................................16 Drumm v. SUNY Geneseo Coll., 794 F. Supp. 2d 423 (W.D.N.Y. 2011) ....................................................................................15 Duch v. Jakubek, 588 F.3d 757 (2d Cir. 2009).......................................................................................................9 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) .................................................................................................................17 Hargett v. Metro. Transit. Auth., 552 F. Supp. 2d 394 (2d Cir. 2008) .........................................................................................18 Holland v. City of New York, No. 10-cv-2525 (PKC), 2011 WL 6306727 (S.D.N.Y. Dec. 16, 2011)...................................15 In re Bank of America Corp. Securities, Derivative, and Employee Retirement Income Security Act (ERISA) Litigation, 757 F. Supp. 2d 260 (S.D.N.Y. 2010)......................................................................................19 Kaytor v. Elec. Boat Corp., 609 F.3d 537 (2d Cir. 2010).....................................................................................................15 Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003).....................................................................................................14 Malik v. Carrier Corp., 202 F.3d 97 (2d Cir. 2000).......................................................................................................16 McCullough v. Xerox Corp., No. 12-cv-6405, 2013 WL 1838638 (W.D.N.Y. May 2, 2013)...............................................15 Perry v. NYSARC, Inc., 424 F. Appx. 23 (2d Cir. 2011)..................................................................................................4 Raeman v. Cnty. of Ontario, No. 12-cv-6009 (JS), 2013 WL 956758 (W.D.N.Y. Mar. 12, 2013) .......................................16 Richardson v. new York State Dep’t of Corr. Servs., 180 F.3d 426 (2d Cir. 1999).....................................................................................................14 Rodas v. Town of Farmington, 918 F. Supp. 2d 183 (W.D.N.Y. 2013) ..............................................................................16, 15

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Stewart v. City of New York, 2012 U.S. Dist. LEXIS 96998 (S.D.N.Y. 2012) ......................................................................15 Torres v. Pisano, 116 F. 3d 625 (2d Cir. 1997)....................................................................................9, 11, 12, 13 Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013) ..............................................................................................................15 Vance v. Ball State Univ., 33 S.Ct. 2434 (2013) ............................................................................................................8, 14 42 U.S.C. § 1981a(b)(1).................................................................................................................17 Title VII of the Civil Rights Act of 1964 (“Title VII”) .....................................1, 2, 3, 8, 14, 15, 17 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) ............................3 Federal Rule of Civil Procedure 12(b)(6) ............................................................................1, 3, 5, 7 Federal Rule of Evidence 201 ..........................................................................................................4 Federal Rules of Civil Procedure 12(f) ......................................................................................1, 17 FRCP 8(a) ......................................................................................................................................18 FRE 801(d)(2) ................................................................................................................................20 FRE 802 .........................................................................................................................................19 IN RULING ON THE SUBJECT RULE 12(b)(6) ......................................................................4 Rule 56 .............................................................................................................................................7

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I. PRELIMINARY STATEMENT A. Introduction. The Complaint (Exhibit C to the Declaration of James D. Donathen, Esq., dated October 30, 2013)1 sets purported claims for relief for discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) concerning alleged conduct of co-workers in the Town of Cheektowaga’s Sewer Maintenance Department. Defendant Town of Cheektowaga (the “Town”) submits this Memorandum of Law in support of its motion: (a) pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissing the Complaint in its entirety, on the ground the Complaint fails to state a claim upon which relief may be granted; (b) in the alternative, pursuant to Federal Rules of Civil Procedure 12(f), striking the paragraphs wherein non-party co-workers are named, including paragraphs 18, 19, 20, 22, 23, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 45, 46, 47, 48, 52, 53, 55, 56, 58, 59, 60, 61, 63, 64, 65, 66, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 85, 86, 87, 89, 90, 92, 111, 131 and 135, from the Complaint, because the paragraphs contain lurid and unnecessarily detailed allegations concerning these non-parties, and they detract from the Court’s dignity; and (c) awarding such other and further relief as the Court deems just and proper to the Town. B. Procedural Background. On January 22, 2013, Plaintiff Lisa Sprada (“Sprada”) filed a charge of discrimination and retaliation against the Town with the New York State Division of Human Rights (“SDHR”), and cross-filed it with the U.S. Equal Employment Opportunity Commission (“EEOC”). Following investigation thereof, the SDHR issued its Determination and Order After

1

All exhibits to the Donathen Declaration will hereafter be referred to as “Ex.”

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Investigation, dated May 15, 2013 (“Determination and Order”), dismissing the charge for lack of merit. (Ex. A). The SDHR specifically found: a. The investigation did not reveal sufficient evidence to suggest Sprada had been discriminated against. b. The evidence showed that Sprada often participated in sexual discussions with coworkers. c. The evidence showed that Sprada on at least two occasions kissed a co-worker at the center of the complaint. d. The Town conducted a thorough investigation which culminated in the conclusion that Sprada had been involved in a consensual sexual relationship with a coworker. e. As a result of the investigation, the Town took steps to prevent sexual harassment in the workplace and disciplined individuals who failed to quickly and appropriately report allegations of sexual harassment. f. Evidence showed that the Town did not retaliate against Sprada. g. Sprada contributed to the creation of a hostile work environment by not interacting with and attempting to record her co-workers. h. The Town sought to diffuse the work environment by transferring Sprada to another department. Thereafter, on July 3, 2013, the EEOC adopted the findings of the SDHR and issued its Dismissal and Notice of Rights. (Ex. B). Sprada commenced the subject lawsuit on September 30, 2013. (Ex. C). C. Grounds for Motion. The Town now moves to dismiss the Complaint in its entirety. First, the Complaint’s salacious allegations ignore the undisputed good faith effort of the Town to investigate Sprada’s allegations and take appropriate remedial action, and Sprada’s voluntary contribution to her workplace environment. As to the First Cause of Action for discrimination under Title VII, Sprada fails to allege the essential element that the Town was negligent in responding to her internal complaints of discrimination, and cannot do so based on her sworn statements dated November 20, 2012 and December 5, 2012 and handwritten diary provided to the Town’s investigator. (Exs. D, E and F, respectively.) As to the Second Cause of Action for retaliation

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under Title VII, Sprada fails to allege the essential element that the Town has taken any tangible employment action against her. In addition, Sprada is precluded from recovering punitive damages against the Town, which is a municipality. Consequently, the First and Second Causes of action are fatally flawed, and entire Complaint should be dismissed. In the alternative, should any part of the Complaint survive the Town’s motion to dismiss, numerous paragraphs or portions thereof should be stricken because they contain lurid and unnecessarily detailed allegations concerning non-party co-workers who cooperated in the Town’s investigation of Sprada’s complaints. II. DISMISSAL STANDARD The United States Supreme Court revisited the standard of review on a motion to dismiss and concluded that: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid., a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true. Bell Atlantic Corp. v. Twombly, 550 U.S. 545 (2007). The “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”)). As set forth below, while the Complaint details the alleged salacious conduct of nonparties, it contains only threadbare allegations as to the Town’s alleged liability therefor. Indeed, “threadbare recitals of a cause of action’s elements” supported by mere conclusory -3-

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statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 622, 678 (2009). The tenet that a Court must accept as true the factual allegations in the complaint does not apply to legal conclusions. Id. III. IN RULING ON THE SUBJECT RULE 12(B)(6) MOTION, THE COURT MAY CONSIDER DOCUMENTS REFERENCED IN OR RELIED UPON IN THE PREPARATION OF THE COMPLAINT Although “the Court must generally accept as true all of the factual assertions in the complaint” on a motion to dismiss, “there is a narrow exception to this rule for factual assertions that are contradicted by the complaint itself, by documents upon which the pleadings rely, or by facts of which the court may take judicial notice.” Perry v. NYSARC, Inc., 424 F. Appx. 23, 25 (2d Cir. 2011); accord Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002), remanded to No. 00-cv-2839, 2003 WL 749422 (S.D.N.Y. Mar. 5, 2003); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992). The SDHR’s Determination and Order (Ex. A), the EEOC’s Dismissal and Notice of Rights (Ex. B), Sprada’s sworn statements (Ex. D and E), and her diary (Ex. F), are properly considered on this motion because the aforesaid documents are either referenced in the Complaint, were relied upon by Sprada in drawing the Complaint or are matters of which judicial notice may be taken. The Complaint (Ex. C ¶¶117 & 135(o)) specifically references the administrative proceedings before the SDHR. Moreover, the SDHR’s Determination and Order (Ex. A) and the EEOC’s Dismissal and Notice of Rights (Ex. B), jurisdictional prerequisites to Sprada commencing the subject action in Federal Court, are documents of which the Court may properly take judicial notice under Federal Rule of Evidence 201. See, e.g., Avgerinos v. Palmyra-Macedon Cent. Sch. Dist., 690 F. Supp.2d 115, 123 (W.D.N.Y. 2010) (where the Court,

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among other things, took judicial notice of the defendant’s response to the plaintiff’s EEOC charge on a Rule 12(b)(6) motion). Sprada specifically references her December 5, 2012 sworn statement (Ex. E) in paragraphs 101 through 108 of the Complaint. Moreover, many of the allegations of the Complaint are lifted verbatim or nearly so from her two sworn statements and her diary. For example, the Court is invited to compare the following:           Complaint ¶7 with Ex. F (Diary) at 3 - comments allegedly made by Latshaw; Complaint ¶¶13-14 with Ex. E (12/5/12 Sworn Statement) at 106-07 - alleged conversation about “spit or swallow”; Complaint ¶17 with Ex. E (12/5/12 Sworn Statement) at 16-17 - alleged comment about no females working on Wednesdays; Complaint ¶22 with Ex. D (11/20/12 Sworn Statement) at 1, Ex. E (12/5/12 Sworn Statement) at 10 - Mr. A’s2 alleged statements about his genitalia; Complaint ¶24 with Ex. F (Diary) at 1 - Sprada’s alleged conversation with Mr. Bessing; Complaint ¶¶25-26, 37-38 with Ex. D (11/20/12 Sworn Statement) at 1, Ex. E (12/5/12 Sworn Statement) at 28-29, 86 - Mr. A’s alleged lewd behavior; Complaint ¶¶27-28, 39 with Ex. E (12/5/12 Sworn Statement) at 14, Ex. F (Diary) at 2 - alleged co-worker statements about Sprada’s jeans and work equipment; Complaint ¶30 with Ex. E (12/5/12 Sworn Statement) at 48 - Mr. A’s alleged actions while in the truck; Complaint ¶¶31-32 with Ex. E (12/5/12 Sworn Statement) at 49 - Mr. A’s alleged statements about his fantasy; Complaint ¶34 with Ex. D (11/20/12 Sworn Statement) at 1, Ex. E (12/5/12 Sworn Statement) at 53-65 - regarding Sprada and Mr. A kissing;

As discussed below, the Town is requesting that the non-party, co-workers names be removed from Sprada’s complaint where Sprada has alleged lewd or lascivious behavior. As such, the Town will be referring to these individuals as Mr. A, Mr. B, etc.

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Complaint ¶36 with Ex. D (11/20/12 Sworn Statement) at 1, Ex. E (12/5/12 Sworn Statement) at 59 - Mr. A allegedly asking if Sprada wanted to “get busy” and he wanted to meet her kids; Complaint ¶38 with Ex. D (11/20/12 Sworn Statement) at 1 - alleged incident with Mr. A directing Sprada to the work truck; Complaint ¶39 with Ex. E (12/5/12 Sworn Statement) at 13 - Mr. C’s alleged statements about work equipment; Complaint ¶¶40-41 with Ex. E (12/5/12 Sworn Statement) at 59-65 - Sprada’s and Mr. A’s physical contact; Complaint ¶¶46-47 with Ex. E (12/5/12 Sworn Statement) at 47 - alleged comments made by Mr. D; Complaint ¶50 with Ex. D (11/20/12 Sworn Statement) at 1, Ex. E (12/5/12 Sworn Statement) at 17-19, Ex. F at 4 - Sprada’s alleged February 2012 conversation with Latshaw; Complaint ¶52 with Ex. F (Diary) at 4 - Sprada stating that if Mr. D’s comments persisted, she would go to Mr. Romano; Complaint ¶60 with Ex. E (12/5/12 Sworn Statement) at 105 - alleged comments by Mr. C about a book; Complaint ¶65 with Ex. E (12/5/12 Sworn Statement) at 31 - Mr. A’s alleged statement about paying for sex; Complaint ¶¶66-68 with Ex. E (12/5/12 Sworn Statement) at 34, 47, Ex. F (Diary) at 12 - Mr. A’s alleged statements about Sprada’s breasts; Complaint ¶¶70-71 with Ex E (12/5/12 Sworn Statement) at 46-47, Ex. F (Diary) at 12 - Mr. A’s alleged comments about pornography; Complaint ¶75 with Ex E (12/5/12 Sworn Statement) at 80-81 - Mr. A’s alleged inquiry about Sprada’s sex life; Complaint ¶76 with Ex. E (12/5/12 Sworn Statement) at 71, Ex. F (Diary) at 13 Mr. A’s alleged comments about female singers; Complaint ¶¶80-82 with Ex. D (11/20/12 Sworn Statement) at 2, Ex. E (12/5/12 Sworn Statement) at 38 - Mr. B’s alleged comments about how Sprada injured her finger;

    

       

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 

Complaint ¶83 with Ex. E (12/5/12 Sworn Statement) at 38 - Mr. B’s alleged comments relating to candy; Complaint ¶¶85-89 with Ex. D (11/20/12 Sworn Statement) at 2, Ex. E (12/5/12 Sworn Statement) at 40-41, Ex. F (Diary) at 5-7 - Sprada’s alleged conversation with Mr. B on November 12, 2012; Complaint ¶¶90-91 with Ex. D (11/20/12 Sworn Statement) at 2, Ex. E (12/5/12 Sworn Statement) at 43-44, Ex. F (Diary) at 8-9 - Sprada’s alleged conversation with a co-worker about Mr. Romano; Complaint ¶¶97-98 with Ex. E (12/5/12 Sworn Statement) at 44-45, Ex. F (Diary) at 10-11 - vacuum parts; Complaint ¶¶16, 135 with Ex. F (Diary) at 14-15 - reasons why Sprada didn’t want to come forward; and Complaint ¶¶100-108 with Ex. E (12/5/12 Sworn Statement) generally - Sprada’s reference to her December 5, 2012 statement.

  

Consequently, the Town submits that Sprada’s November 20, 2012 sworn statement (Ex. D), her December 5, 2012 sworn statement (Ex. E) and her diary (Ex. F) may be reviewed by this Court in ruling on the subject FRCP 12(b)(6) motion. Cortec Indus., Inc., 949 F.2d at 48 (“Where plaintiff has actual notice of all the information in the movants papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.”). As discussed below, the averments in Sprada’s sworn statements and diary contradicting key portions of the Complaint concerning the Town’s alleged negligence in responding to Sprada’s internal complaints of discrimination - are properly to be considered by this Court in determining whether the subject motion to dismiss should be granted. IV. ARGUMENT POINT I THE FIRST CAUSE OF ACTION (DISCRIMINATION) SHOULD

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BE DISMISSED BECAUSE SPRADA CANNOT ALLEGE THAT THE TOWN WAS NEGLIGENT IN THE HANDLING OF HER COMPLAINTS. To sustain a violation of Title VII based on a hostile work environment, Sprada must establish: (1) the alleged harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, and (2) “if the [alleged] harassing employee is the victim’s co-worker [i.e. not a supervisor], the employer is liable under Title VII only if it was negligent in controlling working conditions. Vance v. Ball State Univ., 33 S.Ct. 2434, 2437 (2013). The Town directs the Court’s attention to two issues: (1) whether Sprada had a reasonable avenue for complaint, and (2) whether the Town was negligent in its response to internal complaints of alleged harassment lodged with Sewer Department management in February 2012 and August 2012 (when Sprada requested that Latshaw refrain from taking any action), and in November 2012 (when Latshaw immediately reported the complaint to the Town’s Employee Relations Coordinator), after which an immediate and thorough formal investigation was undertaken by the Town and the investigator it retained—Peter M. Vito & Associates. A. The Town Provided a Reasonable Avenue for Complaint.

The Complaint fails to allege that Sprada lacked a reasonable avenue of complaint. Nor can she make such a claim. Indeed, Sprada’s December 5, 2012 Sworn Statement confirms that she received the Town’s Employee Handbook and was familiar with it. (Ex. E at 6-7 and exhibit 1 thereto). Further, in response to a specific question whether she had reviewed the sexual harassment policy therein, Sprada replied: “I recall, I believe so. . . .” (Ex. E at 7). The Discrimination and Harassment policy of the Town’s Employee Handbook specifically prohibits the co-worker conduct alleged in the complaint and provides for multiple -8-

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places to lodge any harassment complaint, including to Employee Relations Coordinator Romano. (Ex. E, exhibit 1 thereto at 47-50). Sprada herself recognized that she had the ability to complain to Mr. Romano regarding any harassment. (Ex. E at 20 & 43) (acknowledging that if someone “crossed the line,” Sprada could go to Mr. Romano with issues of harassment and that she had not done so). Hence, Sprada cannot impute liability to the Town on the ground that it did not provide a reasonable opportunity to complain. See, Torres v. Pisano, 116 F. 3d 625, 636 (2d Cir. 1997). B. The Town Was Not Negligent in Responding to Sprada’s Complaints.

“Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can still be held liable if plaintiff can show that they ‘knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.’ This standard requires a plaintiff to show that (1) someone had actual or constructive knowledge of the harassment, (2) the knowledge of this individual can be imputed to the employer, and (3) the employer’s response, in light of that knowledge, was unreasonable.” Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir. 2009) (emphasis in original) (internal citations omitted). The Complaint (Ex. C ¶¶12-49) alleges that Sprada encountered a series of inappropriate statements and conduct from male co-workers from August 2011 through February 2012. The Complaint (id. ¶¶50-51) further alleges that Sprada met with Supervisor Latshaw on February 10, 2012, that she “reported the sexually offensive comments” and “Latshaw told her to let the comments go, and see if things get worse.” However, the Sprada’s sworn statements and diary paint a much different picture of her February 10, 2012 meeting with Latshaw. Sprada confirmed - in her November 20, 2012 Sworn Statement - that she did not tell Latshaw any specific complaints:

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(Ex. D at 1). Sprada reiterated - in her December 5, 2012 Sworn Statement - that she did not provide any specifics to Latshaw on February 10, 2012 and, moreover, asked him to not to say anything about her vague complaint: Q. A. Q. A. Q. A. Okay Page 4., I’d like to refer you to February 10, 2012. Is that the day you approached Bob Latshaw? Yes, it is. Is that the first time you approached him regarding this matter? Yes. And do you recall what you told him? I recall that I wasn’t very specific. I didn’t want to tell him everything. My hopes in talking to him was that he would just talk to the guys and, you know, in a vague way, but I had to work with these guys for 20 years, so we had agreed that if it continued, that we would talk and I would come to him. . . . In the entry dated 2-1-12 there are no names mentioned? Right. And you . . . asked him not to say anything? * * I asked him not to say anything due to the fact that I have to work here for the next 20 years but I wanted him to be aware there was a problem. We agreed that next time I was made to feel uncomfortable, that I would let him know and it would be addressed.

Q. A. Q. * A.

(Ex. E at 17-19) (emphasis supplied). The Complaint thereafter alleges that she again approached Latshaw in August 2012 with her workplace concerns. (Ex. C at ¶77). Sprada’s November 20, 2012 Sworn Statement again confirms that she gave no specifics and made yet another request to Latshaw not to mention anything:

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(Ex. D at 1-2). The Complaint (Ex. C ¶92) alleges that Sprada met with Latshaw on November 16, 2012 and [belatedly] “told him everything that been going on.” Sprada admits - in her December 5, 2012 Sworn Statement that this was the first time when she asked a supervisor to speak with anyone regarding what had occurred. (Ex. E (12/5/12 Sworn Statement) at 96). Moreover, Sprada’s December 5, 2012 Sworn Statement reveals that she repeatedly failed to ask her co-workers to cease making allegedly inappropriate statements and until November 16, 2012, did not report much of the alleged misconduct on which her Complaint is based. (Cf. Complaint (Ex. C) ¶¶46-91 with 12/5/12 Sworn Statement (Ex. E) at 13, 32-34, 3739, 47, 96). And, Sprada’s diary contains the admission that she made a conscious decision not to report any of the misconduct to Employee Relations Coordinator Romano. (Ex. F at 8-9) (November 14, 2012 entry wherein Sprada told a male co-worker “You don’t see me crying to Romano for harassment . . . .”). The Second Circuit, in Torres v. Pisano, faced a markedly similar situation where an allegedly “intimidated and embarrassed employee was finally able to gather the strength to complain about the harassment that she had been enduring, but specifically asked the supervisor to whom she complained to keep the matter confidential and to refrain from taking action until a

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later date.” 116 F.3d at 639. The Court aptly posed the question: “Does a supervisor breach his duty to remedy the harassment by honoring the employee’s request?” Id. Applying the Torres “case to case” analysis, the plain answer is that Supervisor Latshaw did not breach his duty to remedy the harassment by honoring Sprada’s instructions to take no action in light of Sprada’s conscious decision to withhold the details of the alleged harassment from him and Romano. As in Torres, Sprada had not revealed any “allegations [] of any serious physical or psychological harm that would have occurred if the employer did not act forthwith.” Id. Nor is this a case where the employer was faced with allegations that a supervisor or coworker was harassing a number of employees. See id. Rather, the allegations raised by Sprada in her admittedly “unspecific” conversations with Supervisor Latshaw focused solely on her individual situation. As the Second Circuit aptly observed, “the law will not presume in every case that harassed members of Title VII’s protected classes do not know what is best for themselves and cannot make reasonable decisions to delay - at least for a time - pursuing harassment claims, perhaps for privacy or emotional reasons, until they are ready to do so.” Torres, 116 F. 3rd at 639. Here, Sprada’s diary reflects that her conscious decision to withhold information from the Town until November 16, 2012 stemmed from her concerns among other things “of what my husband [also employed by the Town] would think” and “what it would do my marriage.” (Ex. F at 14).3 Similarly, as in Torres, Sprada did not inform her supervisor of the full extent of her harassment, but only recounted a few relatively minor incidents. See Torres, 116 F.3d at 639.

While Sprada’s diary does not elaborate, Sprada likely was concerned that her husband would learn of her consensual relationship with a male co-worker in the Sewer Maintenance Department. See infra, p. 19, n. 6.

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Then, Sprada, as in Torres, compounded the situation by repeatedly instructing Supervisor Latshaw to keep her vague verbal complaints confidential. See, Torres, 116 F.3d at 638-39. In Torres, the Second Circuit concluded that the supervisor behaved reasonably in honoring the complainant’s request for confidentiality and in failing to act immediately to end the harassment, and that he (and therefore the employer) did not breach any duty to the complainant. Id. at 639. The facts of this case mandate the same conclusion, i.e. that Supervisor Latshaw behaved reasonably in honoring Sprada’s request “not to say anything” and agreeing that the “next time [Sprada] was made to feel uncomfortable, that [she] would let him know and it would be addressed.” (Ex. E at 19). The next time Sprada reported anything to Latshaw and asked him to take action - on November 16, 2012 - Latshaw promptly arranged a meeting with Employee Relations Coordinator Romano where Sprada, for the first time, shared “everything that had been going on. . . .” (Ex. C ¶92). Thereupon, Mr. Romano assured Sprada that the Town would conduct a full investigation of her complaints. (Ex. C ¶¶92-95). As noted in the SDHR’s Determination and Order (Ex. A) and reflected by the allegations of the Complaint (see ¶100 et seq.,), the Town retained the services of an experienced private investigator, conducted a thorough investigation and took appropriate remedial action. The allegations of the Complaint also are deficient in seeking to charge the Town with knowledge of her alleged vague complaints to Mark Bessing and Ray Bobeck, who Sprada refers to as foremen or supervisors (without support therefore). Sprada does not allege that the Town empowered Bessing or Bobeck “to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote,

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reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Vance, 133 S.Ct. at 2443 (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998)).4 Nor does the Complaint’s allegation that Supervisor Latshaw promised to take the preventive action of speaking to male employees about compliance with the Town’s antharassment policy give rise to Town liability. (Ex. C at ¶8). Given that Sprada was only the second female to work in a historically male department, the allegation that Supervisor Latshaw promised to remind Sewer Department employees to clean up their act before Sprada commenced employment there does not constitute knowledge of an unlawful hostile work environment.5 It is settled that Sprada must articulate “a specific basis exists for imputing the conduct that created the hostile work environment to the employer.” Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (citing Richardson v. new York State Dep’t of Corr. Servs., 180 F.3d 426, 436 (2d Cir. 1999)). Accordingly, the First Cause of Action of the complaint - alleging a hostile work environment in violation of Title VII - fails to state a claim upon which relief can be granted inasmuch as Sprada has failed to plead, and is unable to plead, any facts that the Town was negligent in its response to her complaints.

4

Moreover, as to Mr. Bessing, the salacious allegations of the complaint (Ex. C ¶61) that Sprada told Mr. Bessing a co-worker had been masturbating in her presence and that Mr. Bessing took no action are at odds with Sprada’s December 5, 2012 sworn statement wherein her “complaint” to Mr. Bessing was limited to verbal comments by a co-worker and told Mr. Bessing: (1) “to not tell”; (2) “not to take any action” ; and (3) she “would handle it on her own.” (Ex. E at 10, 50-51). Sprada went on to explain that she does not blame Mr. Bessing for failing to intervene with the co-worker. (Id. at 50-51). Similarly as to Mr. Bobeck, the Complaint (Ex. C ¶63) omits Sprada’s concession that did not tell Bobeck why the co-worker allegedly made her feel uncomfortable (Ex. E at 26-27) thereby undercutting her alleged request to avoid work with the co-worker in question.
5

In fact, Sprada’s diary illustrates that Latshaw may not have been aware of the current issues alleged by Sprada. (Ex. F at 3) (“I wonder if he knows this still goes on.”).

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POINT II THE SECOND CAUSE OF ACTION (RETALIATION) SHOULD BE DISMISSED BECAUSE THE TOWN HAS NOT TAKEN ANY ADVERSE EMPLOYMENT ACTION AGAINST SPRADA. The elements of a retaliation claim under Title VII are: (1) plaintiff participated in an activity protected by Title VII; (2) the employer was aware of her participation in the protected activity; (3) the employer subjected her to a materially adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010); Drumm v. SUNY Geneseo Coll., 794 F. Supp. 2d 423, 425 (W.D.N.Y. 2011). The United States Supreme Court recently clarified that a plaintiff must show that the employer would not have taken the challenged conduct “but for” an intent to retaliate against her. Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2528 (2013). At the pleadings stage, the plaintiff, at a minimum, must allege “evidence stating a plausible claim of retaliation.” Stewart v. City of New York, 2012 U.S. Dist. LEXIS 96998 (S.D.N.Y. 2012) (citing Holland v. City of New York, No. 10-cv-2525 (PKC), 2011 WL 6306727, at *9 (S.D.N.Y. Dec. 16, 2011)). Assuming that Sprada’s statements are true that she timely complained to individuals with supervisory authority about her co-workers’ statements and action (which the Town denies and which is contradicted by Sprada’s own statements), Sprada has failed to identify a materially adverse employment action that the Town allegedly took because of her complaints. Sprada, in her long list of alleged retaliations (Ex. C ¶135), fails to note that these alleged “actions” where taken by co-workers, not supervisors or the Town. Thus, terse statements or being given the cold shoulder by co-workers is not an adverse employment action. McCullough

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v. Xerox Corp., No. 12-cv-6405, 2013 WL 1838638, at *5 (W.D.N.Y. May 2, 2013) (“being given the proverbial cold shoulder by one’s co-workers (even assuming that this could be imputed to the employer) is not enough to show that one has suffered an adverse employment action.”); Rodas v. Town of Farmington, 918 F. Supp. 2d 183, 191 (W.D.N.Y. 2013) (“Generally speaking, ostracism, ‘shunning,’ or the exclusion of an employee from non-essential office functions, cannot rise to the level of ‘material adversity’ required to state a retaliation claim”); Davis v. Verizon Wireless, 389 F. Supp. 2d 458, 478 (W.D.N.Y. 2005) (“Menacing looks, name calling, or being shunned by co-workers does not constitute an adverse employment action.”). Moreover, these actions were not (and are not alleged to have been) done at the direction of the Town. Danieu v. Teamsters Local 264, No. 08-cv-005005, 2011 WL 1259839, a *7 (W.D.N.Y. Mar. 31, 2011) (“[T]he adverse action must be caused by the [defendant] in order to be attributable to the [defendant].”) Sprada’s rehashing of her hostile work environment allegations against her co-workers is insufficient to plead a cause of action for retaliation. See, e.g., Raeman v. Cnty. of Ontario, No. 12-cv-6009 (JS), 2013 WL 956758, at *9 (W.D.N.Y. Mar. 12, 2013); Cruz v. Coach Stores, Inc., No. 96 civ. 8099 (JSR), 1997 WL 598462 (S.D.N.Y. Sept. 25, 1997), aff’d, 202 F.3d 560 (2d Cir. 2000). Nor can Sprada claim that the Town’s internal investigation or allegedly spirited questioning by its investigator meets the “but for” standard enunciated in University of Texas Southwestern Medical Center, supra. The Town was required to investigate Sprada’s allegations by law. See, e.g., Malik v. Carrier Corp., 202 F.3d 97, 105 (2d Cir. 2000) (“an employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the

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employer.”); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (outlining defenses for employers who take reasonable care to prevent and correct sexually harassing behavior). Both Sprada and her male co-workers were subjected to questioning alike. (Ex. C at ¶¶109-115). And contrary to Sprada’s unsubstantiated contention, the Town’s investigation did not in fact dissuade her from making further complaints, as illustrated by her subsequently filed charge with the SDHR and EEOC within two months of the December 5, 2012 interview. (See Ex. C ¶117). POINT III SPRADA MAY NOT CLAIM PUNITIVE DAMAGES. Sprada’s request for punitive damages against the Town should be dismissed because punitive damages are not available against municipalities or governmental officials sued in their official capacities. 42 U.S.C. § 1981a(b)(1); Brown v. Baldwin Free Sch. Dist., 603 F. Supp. 2d 509, 518-19 (E.D.N.Y. 2009) (holding that municipalities are immune from punitive damages except where expressly authorized by statute, and Title VII does not provide for punitive damages against municipalities) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-63 (1981)). Therefore, as punitive damages are unavailable against governmental entities such as the Town herein, Sprada’s prayer for relief in the form of punitive damages should be dismissed in its entirety. POINT IV THE COMPLAINT CONTAINS REPULSIVE LANGUAGE CONCERNING NON-PARTIES AND DETRACTS FROM THIS COURT’S DIGNITY. Pursuant to Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter” upon a “motion made by a party . . . before responding to the pleading.” “A motion to strike is committed to the Court’s

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discretion.” Britt v. Buffalo Mun. Hous. Auth., No. 06-cv-00575 (SR), 2008 WL 4501929, at *2 (W.D.N.Y. 2008). “In a motion to strike [portion of] pleadings, a moving party must show that (1) no evidence in support of the allegation would be admissible; (2) the allegation has no bearing on relevant issues; and (3) allowing the allegation to stand would result in prejudice to the movant.” Adam v. Northstar Location Servs., LLC, No. 09-cv-10632010 WL 3911415, at *7 (W.D.N.Y. Oct. 5, 2010) (quoting Hargett v. Metro. Transit. Auth., 552 F. Supp. 2d 394 (2d Cir. 2008)). Further, even where the allegations are relevant, lurid allegations with unnecessary detail exceeding what is required for noticing pleading under FRCP 8(a) may be stricken. 2 James Wm. Moore et al., Moore & Federal Practice ¶12.37[3] (3d ed. 2010) (“scandalous” matters on a motion to strike, refer to “any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the Court.”); Begay v. Public Serv. Co. of N.M., 710 F. Supp. 2d 1161, 1185 (D.N.M. 2010) (irrelevant allegations stricken as scandalous if they degrade defendant’s moral character, contain repulsive language, or detract from the Court’s dignity and relevant allegations may be stricken if they contain and go into unnecessary detail). The lurid allegations fall into two categories: First, paragraphs 22, 23, 25, 26, 30, 32, 37, 38 and 40 of the Complaint identify a coworker with whom Sprada frequently worked on the weekend by name - herein referred to as Mr. A - and setting forth lurid accusations about their private sexual conversations and actions. The allegations of the Complaint against Mr. A appear to have no relevance to her claim of

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discrimination or retaliation inasmuch as Sprada has admitted, as noted by the SDHR, that she engaged in consensual relations with him. (See Ex. A).6 Second, the Complaint identifies other male co-workers by name and attributes equally salacious comments to them, none of whom are party defendants, in paragraphs 18, 19, 20, 22, 23, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 45, 46, 47, 48, 52, 53, 55, 56, 58, 59, 60, 61, 63, 64, 65, 66, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 85, 86, 87, 89, 90, 92, 111, 131 and 135. The relevance of these allegations is also questionable inasmuch as Sprada had acknowledged that she was not bothered by the conduct of nearly all of these coworkers. (Ex. D at 2). (“Other guys had made comments but I was only bothered by the comments made by [Mr. A] and [Mr. B].”). Sprada’s accusations against nearly all of the nondefendant individuals, therefore, do not, by her own admission, bear upon the merits of her discrimination and retaliation claims; thus, their inclusion serves only to embarrass non-party Town workers7 and to prejudice the Town.8

6

For example, in her December 5, 2012 sworn statement, Sprada admits that she consensually kissed Mr. A on a couple of occasions in September or October 2011 when they would work together on weekends (Ex. E at 54); they kissed a small handful of times (id. at 56); Mr. A told her he loved her (id. at 58); she made out with Mr. A after initiating the contact (id. at 53-54); during the kiss, Mr. A’s penis was released from his pants, she bent over and put her mouth on his penis, and then the parties stopped (id. at 59); Mr. A didn’t force her head onto his penis (id. at 65); Sprada and Mr. A would text back-and-forth, which stopped when Sprada’s husband asked her to stop (id. at 70); Sprada told Mr. A that she wore padded bras (id. at 47); Sprada referred to Mr. A as the “jealous boyfriend” (id. at 51); her husband was upset she worked with Mr. A (id. at 74); Sprada didn’t tell Mr. A to stop when he allegedly made some inappropriate comments and gestures to her (id. at 12); and she didn’t inform anyone she and Mr. A had a physical relationship (id. at 66). As of the writing of this Memorandum of Law, Sprada’s Complaint has been uploaded to a non-federal court website and was the center of a recent Buffalo News article, where Sprada’s co-workers, who are not parties to this action, were specifically named. (Ex. G & H). This Court may take judicial notice of these items. See, e.g., In re Bank of America Corp. Securities, Derivative, and Employee Retirement Income Security Act (ERISA) Litigation, 757 F. Supp. 2d 260, 302 (S.D.N.Y. 2010) (taking judicial notice of a newspaper article on a motion to dismiss); Ceglia v. Zuckerberg, No. 10-cv-00569(F), 2012 WL 503810, *12 (W.D.N.Y. Feb. 14, 2012) (taking judicial notice of a website). 8 Furthermore, the substance of Sprada’s verbal interaction with non-defendant parties would be inadmissible at trial because it consists of rank uncorroborated hearsay statements. Pursuant to Federal Rule of Evidence (“FRE”) 801(c)(2), hearsay consists of an out-of-court statement that “a party offers in evidence to prove the truth of the matter asserted in the statement.” Absent some rule to the contrary, “[h]earsay is inadmissible.” FRE 802. Since
7

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Accordingly, should any portion of the Complaint survive the Town’s motion to dismiss, the subject accusations against non-parties should be stricken, including specifically those portions of the Complaint identifying them by name. V. CONCLUSION The Complaint’s First Cause of Action (discrimination) should be dismissed inasmuch as Sprada has not and cannot allege any facts that the Town was negligent in responding to her belated internal complaints of discrimination. The Complaint’s Second Cause of Action (retaliation) should be dismissed because Sprada has not alleged that she suffered an adverse employment action. Furthermore, Sprada cannot claim punitive damages against the Town, which is a municipality, and that portion of her prayer for relief should be stricken. Alternatively, the lurid and unnecessarily detailed allegations of the Complaint involving nonparties, including paragraphs 18, 19, 20, 22, 23, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 45, 46, 47, 48, 52, 53, 55, 56, 58, 59, 60, 61, 63, 64, 65, 66, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 85, 86, 87, 89, 90, 92, 111, 131 and 135 should be stricken.

Dated: Buffalo, New York October 30, 2013 PHILLIPS LYTLE LLP By /s/Amanda L. Lowe James D. Donathen, Esq. Amanda L. Lowe, Esq. Attorneys for Defendant 3400 HSBC Center Buffalo, New York 14203-2887 Telephone No.: (716) 847-8400 jdonathen@phillipslytle.com alowe@phillipslytle.com Doc #01-2714418.8
Sprada has not and cannot join the non-parties as defendants in this matter, their supposed statements do not constitute an opposing party’s statements, which are excluded from the hearsay definition. FRE 801(d)(2).

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