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Goodall-Gaillard v. New Jersey Dep't of Corrections

United States District Court, D. New Jersey

June 24, 2014

STACEY GOODALL-GAILLARD, Plaintiff,
v.
NEW JERSEY DEP'T OF CORRECTIONS, et al., Defendants.

OPINION

KEVIN McNULTY, District Judge.

This matter comes before the Court upon motions for summary judgment brought on behalf of two separate groups of Defendants (Docket Nos. 148, 149). Because each group joins in the arguments of the other, I discuss the motions together.

The factual allegations are highly involved. I have attempted to categorize Plaintiff's many allegations and place them in rough chronological order. (See Section I.B, pp. 4-32, infra. ) Because it is difficult to assess their significance on first reading, I preview my legal analysis very briefly.

The causes of action fall into two broad categories: Constitutional claims, and discrimination claims under Title VII and parallel state law. For threshold legal reasons, the Constitutional claims primarily implicate, not DOC, but the individual defendants in their individual capacities. Contrariwise, the statutory claims primarily implicate DOC, and not the individual defendants. The Constitutional claims against the individuals are dismissed primarily because they are legally infirm. Thus, for example, there is no viable First Amendment retaliation issue for trial, mostly because Plaintiff did not express herself on matters of public concern. There is no Fourth Amendment issue because an unwanted sexual advance is not a search or seizure. ( See Section II.B, pp. 38-41, infra. ) The statutory claims against DOC for Title VII retaliation and discrimination primarily fail because the claimed issues of fact either do not have evidentiary support or are not material to the particular cause of action against DOC, and hence do not survive the McDonnell Douglas burden-shifting analysis. Thus, for example, Plaintiff's myriad filed grievances concerning routine workplace complaints, because they are not plausibly linked to gender or any other protected category, fail to support a Title VII retaliation claim. Many allegations are accompanied by accusations of gender bias, but there is insufficient specific evidence of discriminatory animus. (See Section II.C, pp. 47-55, infra. )

Finding that there is no genuine issue of material fact requiring trial, I enter summary judgment in favor of the Defendants.

I. BACKGROUND

The plaintiff, Stacey Goodall-Gaillard, brings this civil rights action against the New Jersey Department of Corrections ("DOC"), Commissioner George Hayman, Assistant Commissioner Lydell Sherrer, Assistant Administrator Eric Stokes, Chief Dean Yatauro, Chief Antonio Campos, Captain Richard Gilgallon, Lieutenant Wilfred Mungro, Lieutenant William Anderson, Sergeant Darron Daye, Luther Gregg, and Lance Byrd. See AC (Docket No. 17).

The Amended Complaint ("AC") alleges that Defendants unfairly targeted Plaintiff, a female Corrections Officer ("CO") at Northern State Prison, and subjected her to discriminatory treatment at her work place. Id. She alleges that this discrimination was based on her gender and her status as the recipient of seniority credit under a consent decree entered in Holland v. N.J. Dep't. of Corrections., 246 F.3d 267 (3d Cir. 2001). AC ¶¶ 19-20.

The Amended Complaint contains eleven causes of action in all. Plaintiff alleges violations of the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution (Counts 1-4); Title VII of the Civil Rights Act of 1964 (Count 5); 42 U.S.C. § 1981 (Count 6); and the New Jersey Law Against Discrimination ("LAD") (Count 7). She also alleges conspiracy to violate her constitutional rights (Count 8), as well as additional violations of 42 U.S.C. § 1983 under theories of deliberate indifference, selective enforcement, and Mona liability (Counts 9-11).

A. Procedural History

On August 20, 2008, Plaintiff filed a Charge of Discrimination ("EEOC Charge") against the DOC with the Equal Employment Opportunity Commission ("EEOC"). The EEOC Charge alleged that she was subjected to a hostile work environment, and that she was discriminated against on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964. Defendants' Joint Statement of Material Fact ("DSMF") Ex. RR, EEOC Charge 8/22/2008. The EEOC issued a right-to-sue letter on December 8, 2008, but noted that its investigation did not confirm any statutory violations. DSMF Ex. DDD, EEOC Right to Sue Letter 12/4/2003. Plaintiff, acting pro se, filed a complaint in the United States District Court for the District of New Jersey on March 4, 2009. Complaint (Docket No. 1).[1] Plaintiff obtained counsel on September 10, 2009. (Docket No. 16). On September 23, 2009, with the benefit of counsel, she filed an Amended Complaint ("AC"). (Docket No. 17).

On October 22, 2009, Defendants Greg, Mungro, Anderson, Daye, Byrd, Hayman, Sherrer, Stokes, Yatauro, Campos, Gilgallon and DOC filed a motion to dismiss the Amended Complaint on the basis of the Younger and Rooker-Feldman abstention doctrines. (Docket No. 22). In an Opinion and Order dated March 15, 2010, Hon. Faith Hochberg, the District Judge then assigned to the case, denied the motion to dismiss. (Docket No. 37). Plaintiff moved to amend the Complaint a second time on February 17, 2011. (Docket No. 86). Then-Magistrate Judge Patty Schwartz[2] denied the motion to amend on March 24, 2011. (Docket No. 102).

The Defendants moved for summary judgment on May 31, 2011. (Docket Nos. 148, 149). After the motions were filed, the case was reassigned: first to Judge Claire C. Cecchi on June 30, 2011 (Docket No. 176), then temporarily to Judge Esther Salas on August 22, 2011 (Docket No. 211), and then back to Judge Cecchi on September 19, 2011. The summary judgment motions were administratively terminated by Judge Cecchi on November 6, 2011, to allow for settlement discussions. (Docket No. 215). On June 7, 2012, the Court referred the case to an appointed mediator. (Docket No. 222).

The case was reassigned to me on August 1, 2012. (Docket No. 225). Following an unsuccessful mediation, the summary judgment motions were reinstated on January 15, 2013. (Docket No. 230).

B. Factual Background[3]

The Amended Complaint alleges that the Defendants unlawfully discriminated against Plaintiff and violated her constitutional rights while she was employed by DOC. Defendants Hayman and Stokes are sued in their official capacities only. Defendants Sherrer, Yatauro, and Campos are sued in their official, individual, and supervisory capacities. AC ¶¶ 7-11. Plaintiff seeks compensatory damages of $250, 000 for each cause of action, as well as punitive damages, attorneys' fees and costs, and any other relief the Court finds just and reasonable. AC at 12.

Plaintiff generally alleges that she was unfairly targeted by the Defendants because of her gender and her status as a beneficiary of the Holland consent decree. AC ¶¶ 19-21. Under the terms of that consent decree, she received eight years' retroactive seniority credit. She alleges that she was warned not to disclose that fact to protect herself against retaliation. Id. ¶ 20. For several years, alleges Plaintiff, she has been subjected to more severe punishment than male colleagues, and has been assigned menial jobs because she would not accede to the sexual demands of Defendants. Id. ¶ 22. She also alleges that less qualified recruits are given preferential treatment because they engage in improper relations with supervisors. Id. ¶ 23. Plaintiff alleges that she has been "forced out of work" on more than one occasion, deprived of her privately-owned weapon, and subjected to an increased workload. Id. ¶ 24-25. Finally, Plaintiff alleges that when she complained about the misconduct, Defendants unfairly disciplined, harassed, and retaliated against her. See id. ¶ 26-24.

1. DOC policies and practices regarding discrimination and harassment

DOC policy prohibits employment discrimination or harassment based on race or sex/gender. It is a violation of that policy to treat an employee less favorably based on her membership in a protected category, or to use derogatory or demeaning references regarding the protected categories. Retaliation based on claims of discrimination under the policy is also prohibited.

The DOC policy provides in relevant part:

The State of New Jersey is committed to providing every State employee and prospective employee with a work environment free from discrimination or harassment. Under this policy, forms of employment discrimination or harassment based upon the following protected categories are prohibited and will not be tolerated; race, creed, color, national origin, nationality, ancestry, age, sex/gender, (including pregnancy), marital status, civil union status, domestic partnership status, familial status, religion, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for service in the Armed Forces of the United States, disability. To achieve the goal of maintaining a work environment free from discrimination and harassment, the State of New Jersey strictly prohibits conduct that is described in this policy...
It is a violation of this policy to engage in any employment practice or procedure that treats an individual less favorably based upon any of the protected categories referred to in 14(a) above. This policy pertains to all employment practices such as recruitment, selection, hiring, training, promotion, transfer, assignment, layoff, return from layoff, termination, demotion, discipline, compensation, fringe benefits, working conditions and career development.
It is also a violation of this policy to use derogatory or demeaning references regarding a person's race, gender, age, religion, disability, affectional or sexual orientation, ethnic background, or any other protected category set forth in 1(a) above. A violation of this policy can occur even if there was no intent on the part of an individual to harass or demean another... (Exhibit J, p.2, Sec. IIIA)
Retaliation against any employee who alleges that she or he was the victim of discrimination/harassment, provides information in the course of an investigation into claims of discrimination/harassment in the workplace, or opposes a discriminatory practice, is prohibited by this policy.

DSMF Ex. J, Excerpts from DOC Policy Statement on Prohibiting Discrimination in the Workplace, p. 1, 2, 6, Sec. IIA, VII. DOC policies also define sexual harassment, set forth employee and supervisor responsibilities, and establish a complaint process. DSMF (Docket No. 149-9) ¶ 122 (citing Ex. JJ, Excerpts from DOC Policy Statement on Prohibiting Discrimination).

The DOC Employee Handbook provides that a person shall not be denied employment, examination, appointments, training, recruitment, promotion, retention, discipline or any other personnel action because of membership in a protected category, including race, color, and sex. DSMF ¶ 119; Ex. K, DOC Employee Handbook Excerpts at ii, 6-1. The Handbook also establishes grievance and disciplinary procedures. Grievance forms (form DPF-251) may be obtained from the Human Resources or union representative. Id. Employees submitting these forms are instructed to give a statement of the grievance and the corrective measure suggested. Id. Grievances are submitted to Human Resources for processing and for arrangement of a multi-step hearing. Id. The first-step decision is provided to the grievant in writing, and may either resolve the grievance or provide for further appeal to step two. Id. Disciplinary procedures and appeal rights are also described in detail in the Handbook. Id.; Ex. K, DOC Employee Handbook at 6-1, 6-2.

Internal complaints of discrimination are submitted to the Office of Equal Employment Opportunity and are governed by New Jersey State Procedures for Internal Complaints Alleging Discrimination in the Workplace. DSMF ¶ 121 (citing Ex. L). The DOC's Equal Employment Division ("EED") receives and investigates DOC employees' discrimination, harassment, and retaliation complaints. Id. ¶ 214. Every DOC facility has a staff person who acts as an administrative liaison to provide assistance to employees who file EED complaints. They hear employees' concerns and disseminate information about procedures for filing complaints. Id. ¶ 215.

An advisory form is issued to any Respondent accused in a retaliation proceeding before the EED. Id. ¶ 124. The advisory form states in relevant part:

It is the policy of the Department that no employees shall be retaliated against for opposing policies or practices within the NJDOC that the employee believes to be discriminatory or retaliatory. Retaliation pertains to actions that occur because an individual has opposed discriminatory employment policies or acts; filed a discrimination complaint; or testified, assisted or participated in an investigation, proceeding or hearing involving employment discrimination. All staff are hereby directed to refrain from making any statement, taking action or participating in activities that may be perceived as retaliatory. You need to know that even when no probable cause if found to substantiate initial allegations of harassment or discrimination, any subsequent allegations of retaliation against the complainant or witnesses are investigated separately and independently. It is possible for a Respondent to be disciplined for an act of retaliation although the original complaint did not result in a finding of discrimination or harassment. Do not make yourself vulnerable to such a charge of retaliation. Conduct yourself in a professional manner that reflects your understanding of the Department's mission to eradicate all forms of discrimination and harassment in the workplace.

Id. (citing Ex. LL, EED Advisory).

The DOC has also implemented mandatory harassment and discrimination training for employees. Training sessions have been conducted at each facility by an EED representative. DSMF ¶ 216 (citing Ex. CCC, Sherrer Dep. at 19).

2. Plaintiff's employment history at Northern State Prison

The plaintiff, Stacey Goodall-Gaillard, was hired by the DOC in 1996. Pl. Responsive Statement of Material Facts ("RSMF") (Docket No. 180-2) ¶ 52. She asserts that she was hired as a result of the Holland Consent Decree. Id. ¶¶ 318-19.[4] That consent decree resolved a number of lawsuits against the DOC for gender and race discrimination. The decree included a requirement that the DOC put in place education and training programs and set up the Equal Employment Division ("EED"). Id. ¶ 322. In addition, certain protected beneficiaries were granted seniority.

Plaintiffs first job for the DOC was at Wagner Correctional Facility. She asserts that she had problems with other staff members and supervisors when they learned she was a beneficiary of the consent decree. RSMF ¶¶ 324-25. In 1998, she transferred to Northern State Prison. Id. ¶ 326. As a result of the consent decree, after one year of service she was granted seniority credit for the equivalent of eight years of service. Id. 323. She alleges that colleagues at Northern State Prison were also upset to learn that she was a beneficiary of the consent decree. Id. ¶¶ 327, 329.

Plaintiff asserts that she had a positive work history at Northern State Prison. RSMF ¶ 312. Defendants' depositions, too, contained positive comments about Plaintiffs job performance. Defendant Sherrer testified that Plaintiff was conscientious and assertive. RSMF Ex. 6, Sherrer Dep. at 27-28. Defendant Gilgallon similarly testified that she was an "excellent officer" and that he had not had a problem with her prior to an incident regarding prison mail policy.[5] RSMF Ex. 2, Gilgallon Dep. at 66. Plaintiff asserts that her disciplinary record consists of retaliatory, "bogus charges." RSMF ¶ 312.

While at Northern State Prison, Plaintiff asserts, she was subjected to sexual harassment by other corrections officers, including sexual advances by Defendants Daye, Byrd, and Mungro. RSMF ¶ 330. She alleges that she was exposed to sexual harassment and violence by other corrections officers in the prison. Id. ¶¶ 331, 335. These experiences allegedly created a hostile environment which forced her out of work for "stress leave" from April 30, 2005 to June 2005. Id. ¶336.[6] Defendants assert that Plaintiff took sick leave to avoid an investigation into certain actions, which they do not specify. DRRSMF ¶ 346. Plaintiff alleges that when she returned to work, the harassment continued. RSMF ¶ 338. In October of 2005, she was "banned" from the prison in retaliation for exercising her first amendment rights. She asserts that she received no pay during this time and was forced by DOC to see a psychiatrist. Id. ¶ 338. When she returned, she was subjected to continued harassment. Id. ¶ 340.

Plaintiff, personally and through an expert, asserts that she suffers from Post-Traumatic Stress Disorder and Major Depression as a result of the "repeated sexual harassment and discrimination" that occurred at Northern State Prison and within the DOC. RSMF ¶ 392 (citing Ex. 47, Thailer Expert Report). Defendants dispute the reliability of the expert report and deny that it supports Plaintiff's claims of gender discrimination. DRRSMF ¶ 394.

3. Individual Defendants

Plaintiff's lawsuit names the DOC and the following individual Defendants: George Hayman, Lydell Sherrer, Eric Stokes, Dean Yatauro, Antonio Campos, Richard Gilgallon, Wilfred Mungro, William Anderson, Darron Daye, Lance Byrd, and Luther Gregg.

Defendant Richard Gilgallon was stationed at Northern State Prison ("NSP") from 1987 to February 1, 2007. DSMF ¶ 17 (citing Ex. B, Gilgallon Dep. (Docket No. 149-2) at 10). During the relevant time, Gilgallon was a lieutenant and captain on the CO staff (promoted in 2003 or 2004), and retired from the DOC on February 1, 2007. DSMF ¶¶ 18-19 (citing Ex. B, Gilgallon Dep. at 10-11). Plaintiff claims that Gilgallon anonymously posted on prison blogs and made discriminatory comments about female officers. RSMF ¶¶ 229-30. Plaintiff also alleges that he arranged to bring "bogus charges" against her and conspired with others to have Plaintiff disciplined. Id. ¶ 228. She alleges that Gilgallon was partially responsible for her being replaced at her post by CO recruits. RSMF ¶ 341.

Defendant Darron Daye worked at Northern State Prison from 1994 to 1997, and from 1999 forward. He went to the Stabilization Reintegration Program boot camp ("SRP") at some point before 1999. DSMF ¶ 69 (citing Ex. H, Daye Dep. at 14). Daye testified that he did not recall directly supervising Plaintiff but Plaintiff disputes this. Id. ¶ 75 (citing Ex. H, Daye Dep. at 40); RSMF ¶ 75. Plaintiff alleges that Daye faced EED complaints for harassment. RSMF ¶ 369. She also alleges that he made a sexually explicit remark to her. RSMF ¶ 334. Daye denied Plaintiff's allegations of attempting to date her, using foul or sexual language directed at her, or making comments about her weight. Id. ¶¶ 78, 82 (citing Ex. H, Daye Dep. at 47-49, 65).

Defendant Lance Byrd worked at Northern State Prison from 1988 to 2009, except for a one year period from 1994 to 1995 when he worked at East Jersey State prison. DSMF ¶ 49. Byrd was a senior CO from 1988 to 1994; a sergeant from 1994 to 2005; and a lieutenant starting in 2005. Id. ¶ 50. Defendant Byrd was not Plaintiff's direct supervisor and he testified that Plaintiff never worked for him. DSMF ¶ 58 (citing Ex. G., Byrd Dep. at 40); see also DSMF ¶ 52 (citing Ex. C, Pl. Dep. at 28). Plaintiff claims that Byrd singled her out and subjected her to inappropriate comments, and that he retaliated against her for filing a complaint against him. RSMF ¶¶ 241-42. Plaintiff further asserts that Byrd has been cited in at least thirteen EED complaints involving claims of sexual harassment or discrimination. RSMF ¶ 244 (citingEx. 13, Byrd EED Complaints[7]).

Defendant Wilfred Mungro worked at Northern State Prison from 1987 to 2009, with the exception of a nine-month stint at East Jersey State Prison in 2003. DSMF ¶ 84 (citing Ex. I, Mungro Dep. at 9-10). Mungro was involved in a serious automobile accident in 2007, and he worked only sporadically from 2007 until he retired in May 2009. Id. ¶ 85. (citing Ex. I, Mungro Dep. at 58-60)

Defendant Luther Gregg was the vice president of the Police Benevolent Association. DSMF ¶ 107. Plaintiff asserts that Gregg, like her, was a party to and beneficiary of the Holland consent decree. Id. ¶ 108 (citing Ex. D, Pl. Dep. at 132). Gregg, as a PBA representative, represented Plaintiff on a number of occasions. He represented Plaintiff in Disciplinary Appeals resulting in dismissal of an unauthorized absence charge and multiple lateness charges on June 5, 2007. Id. ¶¶ 111, 112 (citing Ex. S, Disciplinary Appeal Hrg. 6/5/2007; Ex. T, Disciplinary Appeal Hrg. 6/5/2007). He also represented her in a successful Disciplinary Appeal on April 16, 2008 for neglect of duty. Id. ¶ 110 (citing Ex. R, Disciplinary Appeal Hrg. 4/16/2008). Plaintiff does not assert that Gregg harassed her, but she states that he did not adequately respond to her problems. DSMF ¶ 109 (citing Ex. D, Pl. Dep. at 138). Plaintiff asserts that Gregg "turned his head" while things happened to her, and that he failed in his duty to tell the persons involved that their actions were wrong and illegal. RSMF ¶ 271.

Lieutenant Anderson was a Sergeant at Northern State Prison. Plaintiff asserts that Defendant Anderson was a good friend of Defendant Daye. DSMF ¶ 113 (citing Ex. D, Pl. Dep. at 52). She also asserts that he was a Mason (an apparent reference to the Freemasons, a fraternal organization). Id. ¶ 115 (citing Ex. D, Pl. Dep. at 61). Plaintiff alleges that Anderson liked her, flirted with her, and invited her to his house. Id. ¶¶ 116-117 (citing Ex. C, Pl. Dep. at 73, 143).

Defendant Campos worked at Northern State Prison as a Captain until May 10, 2008. DSMF ¶ 162. Plaintiff claims that Campos contributed to her being removed from her post, allegedly for failing to complete her duties, after she requested assistance and filed a complaint against two other supervising officers. RSMF ¶ 295. Defendants assert that Plaintiff does not provide any factual support for her claims against Campos. Id. ¶ 175.

Defendant Dean Yatauro was stationed at Northern State Prison from 1990 to 2008, except for a reassignment to Trenton State Prison for seven months in 1995. Yatauro started at Northern State Prison as a sergeant, and was promoted to lieutenant while at Trenton in 1995. DSMF ¶¶ 137-38. He was promoted to Captain in or about 2000, and then to Chief in 2005. Id. ¶ 137. (citing Ex. TT, Yatauro Dep. at 11-12). Yatauro left Northern State Prison in 2008 when he was transferred to Riverfront Prison. Id. ¶ 139 (citing Ex. TT, Yatauro Dep. at 14). Plaintiff generally alleges that Yatauro retaliated against her for refusing sexual advances from male supervisors, and because she is a Holland beneficiary. DSMF Ex. C, Pl. Dep. at 36; DSMF ¶ 140. Plaintiff does not allege that Yatauro made any sexual advances towards her. However, Plaintiff claims that Yatauro removed Plaintiff from her post at the prison because she was a Holland consent decree beneficiary and she was "not a willing participant in the sexual escapades that goes on at Northern State." Id. ; DSMF ¶ 141 (citing Ex. C, Pl. Dep. at 36).

Defendant Stokes began working for the DOC in 2000 and became the Assistant Superintendent in 2004. Id. ¶ 176 (citing Ex. BBB, Stokes Dep. at 15-16). Stokes was not named in any of the EED complaints filed by Plaintiff. Id. ¶ 183. Plaintiff's claims against Stokes appear to arise from her belief that he failed to address her claims against the other Defendants when he was a Hearing Officer presiding over grievance and disciplinary proceedings.

Defendant Sherrer began working for Northern State Prison as assistant superintendent in 1991. He served as prison administrator from 2002 to 2007. Id. ¶ 188 (citing Ex. CCC, Sherrer Dep. at 9, 11). Plaintiff asserts that as administrator, Sherrer was responsible for the prison: he directed the custody supervisory staff, who in turn directed the custody staff, including officers and recruits. RSMP ¶ 307. Therefore, Sherrer "played a role" in Plaintiff's discipline and reassignment. Id. ¶ 308.

Defendant George Hayman was the Commissioner of the DOC. Plaintiff has not made any specific allegations against Commissioner George Hayman. At her deposition, she testified that he "did not do anything to me personally" and that she named him as a Defendant because he was the Commissioner of the DOC. DSMF 220 (citing Ex. D, Pl. Dep. at 120).

4. Defendants' level of knowledge of the Holland consent decree and membership in the Masons

Plaintiff asserts that there was a culture of gender discrimination, harassment, and retaliation at Northern State prison, evidenced by disparate treatment of female officers and websites frequented by male DOC employees that targeted female officers. Plaintiff alleges that retaliation against her stemmed from the Holland consent decree and also arose from widespread membership in the Masonic fraternity.

a. Knowledge of Holland consent decree

Plaintiff alleges that she was retaliated against because, inter alia, she was a beneficiary of the Holland Consent Decree. Ex. D, Pl. Dep. at 137-38. The Defendants have professed various levels of familiarity with that consent decree.

Gilgallon stated at his deposition that he had "no particular feelings" about officers that were beneficiaries, and that he had benefitted similarly. DSMF ¶ 42 (citing Ex. B, Gilgallon Dep. at 42-43). He testified that he did know that Plaintiff was a beneficiary. Id. ¶ 43.

Mungro testified at his deposition that he was familiar with the Holland consent decree. RSMF Ex. 8, Mungro Dep. at 33-35. He stated that it addressed race and discrimination issues within the DOC, and that the DOC adopted stricter EEOC regulations and provided training as a result. Id. at 35. Mungro also testified that he was "constantly" accused of sexual harassment at Northern State Prison. Id. He recalled EED complaints from Plaintiff and two women who he said were her friends. Id.

Defendant Daye testified at his deposition that he was not familiar with the Holland consent order and that it had no influence on his interactions with Plaintiff. DSMF ¶ 55. Plaintiff disputes this. RSMF ¶ 55. Sherrer testified that he did not know that Plaintiff was a beneficiary of the Holland consent decree. Id. ¶ 202 (citing Ex. CCC, Sherrer Dep. at 28). Defendant Byrd also testified that he knew little about the Holland consent decree, other than that it led to discrimination training. Id. ¶ 55. Byrd did not recall any sexual harassment or discrimination complaints against himself. Id. ¶ 59 (citing Ex. G, Byrd Dep. at 39); see also RSMF ¶ 59 (Plaintiff disputing).

b. Knowledge of Freemasonry at Northern State Prison

Plaintiff also asserts that she was harassed and retaliated against by a clique of men at Northern State Prison who were members of the Masons. According to Plaintiff, if a female officer was not dating one of the members, "she had problems." DSMF ¶ 37. Defendants assert that Plaintiff has not presented any evidence substantiating that theory. Id. (citing Ex. D., Pl. Dep. Excerpts 5/24/2010, at 57). The Defendants professed differing levels of familiarity with Freemasonry at Northern State Prison.

Defendants Mungro and Daye acknowledged that they were members of the Masons. Daye, who was a member from 2007, described it as a benevolent society. Id. ¶ 74 (citing Ex. H, Daye Dep. at 32-33). He stated-and Plaintiff disputes-that he did not know if any other corrections officers or supervisory staff were members. Id.; RSMF ¶ 74. Mungro was a member of the Prince Hall Masons, [8] which he described as a "brotherhood" and an "uplifter of their community." DSMF Ex. I, Mungro Dep. at 28-29. Plaintiff asserts that Campos, too, was a member of the Masons. DSMF ¶ 162.

Byrd testified at his deposition that he was not a member of the Masons, did not know how many people at the prison were Masons, and was unaware of Masons' having received preferential treatment. Id. ¶ 56 (citing Ex. G, Byrd Dep. at 33-34).

Gilgallon testified that he had heard of the Masons and thought it was a secretive organization, but that he had never been a member. He stated that he never heard of a group called the Prince Hall Masons, and did not know whether any male corrections officers were members of Masonic groups. Id. ¶ 45 (citing Ex. B, Gilgallon Dep. at 24-25).

Yatauro testified that he was not aware of corrections officers who were members of the Masons having received better treatment than female officers. Id. ¶ 145 (citing Ex. TT, Yatauro Dep. at 37-38). He also testified that he did not know of any gender discrimination complaints by female corrections officers at Northern State Prison. DSMF ¶ 144 (citing Ex. TT, Yatauro Dep. at 25).

5. Specific Allegations Against Defendants

Plaintiff asserts a multitude of factual allegations against the Defendants in support of her discrimination and retaliation claims. I have attempted to categorize them and place them in chronological order where possible.

a. Metal Detector Search and Mail Sorting (2003)

Plaintiff alleges that she was unfairly searched by Byrd at an entrance metal detector in 2003, that she was assigned additional duties, and that she was singled out because of her gender and weight. Plaintiff filed an EED complaint regarding these issues and an investigation followed. DSMF ¶ 53 (citing Ex. II, Investigation Report 7/16/2003 at 2, 4, 6).

Regarding the unfair searches, Plaintiff reported to the investigator that when she arrived to work, Byrd would make her empty her pockets and handbag. Ex. II, Investigation Report 7/16/2003 at 2. She stated two possible reasons for Byrd's actions: her brother had recently been fired from the prison for bringing in a cellphone for an inmate to use, and Byrd had tried to date her. Id. Regarding the alleged discrimination based on her weight, Plaintiff stated that when Byrd found food in her coat pocket he made a comment about her eating on the job. Id. at 3.

Plaintiff's complaint also involved mail practices at the prison. Specifically, Plaintiff claimed that sorting the mail was an additional duty assigned to her from Byrd, who was not her supervisor. Id. at 2. At the time of Plaintiffs complaint, Byrd was the first shift sergeant in the mail room. Plaintiff was working in traffic control during the second shift. DSMF ¶ 61 (citing Ex. G, Byrd Dep. at 41). She alleged that Byrd directed inmate mail to her post, which was then to be redirected by Plaintiff to the inmates. Id.; DSMF ¶ 51 (citing Ex. C, Pl. Dep. at 27-28). Plaintiff complained that she did not want the obligation of redirecting the mail. Id. ¶ 62.

Plaintiff also claimed that Defendant Sherrer attempted to talk her out of filing an EED complaint. DSMF Ex. EE, EED Decision 9/9/2003 at 2; RSMF ¶ 245. Sherrer denied discouraging Plaintiff from filing a complaint. Id. at 3. He also stated that Plaintiff never told him that she was being harassed or subjected to discrimination. Id.

Daye and Byrd also disputed Plaintiff's account. Daye told the investigator that he was assigned to the lobby to oversee the metal detector machine, and was being trained by Byrd. Id. at 4. Plaintiff's jacket was searched because the machine detected contraband organic matter when the jacket passed through the machine. Id. A follow-up search yielded a packet of hot chocolate mix. Id. Byrd's account of the incident was similar. He stated that all staff members were inspected in the same manner. Id. Defendants generally assert, and Plaintiff disputes, that all staff members are screened in the same manner when the machine indicates a positive finding. DSMF ¶ 53; RSMF ¶ 53.

Byrd acknowledged during the investigation that he brought about a change to the mail routing policy, but not as a means of punishing Plaintiff. Ex. EE, EED Decision 9/9/2003 at 2. Inmate mail has to be searched before it is delivered to inmates. DSMF ¶ 62. Under the old policy, after the search, the mail was sent to the unit where the recipient inmate was thought to be located. If the inmate turned out to be at a different location, the mail would be returned to the mail room, searched again, and rerouted. Id. ¶ 62 (citing Byrd Dep. at 42-44). That was inefficient.

A new policy, seemingly proposed by Byrd, was officially adopted by the prison.[9] A Custody Standard Operating Procedure dated January 15, 2003 and March 15, 2003 stated that undeliverable inmate mail would now be collected and forwarded to Traffic Control. The Traffic Control officer would be responsible for locating the inmate and rerouting the mail to the correct housing unit for distribution. DSMF ¶ 65 (citing Ex. HH, Mail Relocation Custody Standard Operating Procedure, No. 1048, 1/15/2003 and 3/15/2003).

An EED Decision dated September 9, 2003, concluded that Plaintiff had failed to substantiate a claim for retaliation or discrimination. DSMF Ex. EE, EED Decision 9/9/2003. The decision cited statements by both Daye and Byrd that Plaintiff was not singled out for the search, and that all employees were required to screen their belongings in the detector machine. Id. at 1-2. It also noted Byrd's denial that he ever tried to date Plaintiff, as well as Daye's statement that he never heard Byrd comment on Plaintiff's weight. Id.

The decision found that the mail policy was adopted as an official Custody Operating Procedure and applied equally to all designated officers. Ex. EE, EED Decision 9/9/2003 at 2. The decision stated that there was "nothing to suggest that Sgt. Byrd sought to enact a new policy to discriminate against [Plaintiff]." Id. The EED investigation found insufficient evidence to substantiate Plaintiff's claims of gender or weight based discrimination, or her claim of retaliation by Byrd. Id. at 3. The decision also rejected Plaintiffs contention that Sherrer ...


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