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BERKOWITZ v. COUNTY OF ORANGE
November 8, 2000
IAN M. BERKOWITZ, PLAINTIFF,
COUNTY OF ORANGE, ORANGE COUNTY HUMAN RIGHTS COMMISSION, HUBERT LEE, ANGELA COLONNA, CAROL CHICHESTER, MARY SIMMONS, GRAHAM SKEA, FRAN TURI, CHRISTOPHER SHERWOOD, CARLA CARLSON, THEODORE CATLETTI AND JOHN AND/OR JANE DOE 1-10 (SAID NAMES BEING FICTITIOUS AND UNKNOWN AND MEANT TO DESIGNATE EMPLOYEES OF THE COUNTY OF ORANGE AND ORANGE COUNTY SHERIFF'S DEPARTMENT), DEFENDANTS.
The opinion of the court was delivered by: Conner, Senior District Judge.
Plaintiff Ian Berkowitz, a Caucasian Jewish male, brings this
action against the County of Orange, the Orange County Human
Rights Commission ("OCHRC"), ex-Commissioners Hubert Lee, Angela
Colonna and Carol Chichester, and present Commissioners Mary
Simmons, Graham Skea, Fran Turi and Christopher Sherwood
(collectively, the "Commissioners" or "Commissioner defendants"),
alleging racial/religious discrimination in violation of the
Equal Protection Clause of the Fourteenth Amendment, Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title
VII") and the New York State Human Rights Law, N.Y. EXEC. LAW §
290 et seq. ("NYHRL").*fn1 The OCHRC and the Commissioner
defendants bring this motion for summary judgment pursuant to
FED. R. CIV. P. 56 dismissing all of plaintiff's remaining
Plaintiff alleges that the Commissioners engaged in illegal
reverse discrimination when they terminated him from his position
as Executive Director ("ED") of the OCHRC. Specifically,
plaintiff claims that the Commissioners: (1) desired to fill his
position with a minority person before, during and after his
hiring; (2) hired him nonetheless and ostensibly gave him
positive performance reviews while secretly questioning his
ability to fulfill his duties; (3) falsely claimed that he was
terminated for violating his duties and as a result of his
position's reduced workload; (4) in actuality terminated him
because of his race and religion; and (5) actively sought to
replace him with an African-American woman after his termination.
For the reasons that follow, defendants' motion for summary
judgment is granted.
Plaintiff claims that Charlotte Johnson, an African-American
female and Acting Commissioner at the time he was interviewed
(Skea Dep. at 7-8; Chichester Dep. at 13), was among the other
applicants. (Berkowitz Dep. at 66-67.) He states that Johnson was
present for at least one of his first two interview meetings and
asked him at least one question, though he does not recall its
substance. (Id. at 11-12.) Plaintiff also claims that in Winter
1997, ex-Commissioners Richard Rivera*fn4 and Angela Colonna
told him that Johnson wanted the position, but that the other
Commissioners would not let her submit a resume. (Id. at 76.)
Commissioner Graham Skea and ex-Commissioner Carol Chichester
contend that Johnson was not a candidate, (Skea Dep. at 8;
Chichester Dep. at 13), but the Commissioners did discuss, both
during the hiring process and after plaintiff was hired, whether
a person of color and/or a bilingual individual would be better
suited for the position. (Chichester Dep. at 39-40; Colonna Dep.
In early June 1997, plaintiff was informed that he was
seriously being considered for the position, but that there was
"conflict" among the Commissioners delaying the decision.
(Berkowitz Dep. at 13-14.) Plaintiff claims that this "conflict"
involved "heated discussions about whether or not a minority
should be hired to fill the position of executive director," and
that both Rivera and Colonna told him this. (Id. at 74-75.) He
also claims Colonna told him that, even though he was the most
qualified applicant, some Commissioners still wanted to hire a
minority person, and that "[Colonna] said she had to verbally
tell the Commission that that was reverse discrimination and she
would not stand for it." (Id. at 75.) Colonna does recall
discussion on the minority hiring issue, and did voice objection
to some of Skea's comments (Colonna Dep. at 31-33), but states
that "[desiring to hire a minority] wasn't the reason behind . .
. [plaintiff's] termination." (Id. at 31.) Moreover, Colonna
states that there were no discussions about hiring Johnson as ED
prior to plaintiff's hiring. (Id. at 37.)
The Commissioners contend that their "conflict" was over
whether to hire a new ED at all. Chichester testifies that based
on the Barrett litigation*fn5 and questions about the actual
workload the ED would handle, she did not think the OCHRC needed
a new ED at that time. (Chichester Dep. at 10.) Moreover, she
"absolutely [did] not" think plaintiff was the best qualified
applicant for the position, and voiced her concerns to other
Commissioners, but to no avail. (Id. at 29.) The workload issue
was a matter of ongoing concern for the Commissioners at the
hiring stage and throughout plaintiff's tenure as ED (see Skea
Dep. at 25, 29-35; Chichester Dep. at 10-12; Colonna Dep. at 7-9;
Turi Dep. at 17), and it played a major role in their decision to
terminate him. (See Monroe Affm., Ex. E; Lee Dep. at 11.)
Plaintiff's job offer was made in letter dated June 23, 1997
(Monroe Affm., Ex. B), he first reported to work July 7, 1997
(Berkowitz Dep. at 16-17), and Johnson resigned soon after
plaintiff was hired. (Id. at 76.)
Plaintiff received a printed job description which led him to
understand that his job would entail "conducting investigations .
. . mediating complaints . . . putting on presentations on
cultural diversity, cultural awareness, sensitivity training . .
. doing outreach, managing the office and pretty much anything
that fell within those different areas." (Id. at 17-18.) He
states that he rarely had much contact with the other
Commissioners and received no direction regarding his job duties,
even at the monthly Commissioners' meetings. (Id. at 19-25.)
Several Commissioners testify that they had little contact with
plaintiff and few chances to observe him at work. (See Skea
Dep. at 17-18; Chichester Dep. at 24; Sherwood Dep. at 33; Turi
Dep. at 7.)
Plaintiff claims that nonetheless, during his first six months
as ED, his work day was quite busy: "[I]f I wasn't investigating
I was doing interviews; if I wasn't doing interviews I was
putting together a diversity workshop. I mean there was always
something to do." (Id. at 30-31; Sproule Affm., Ex. B.)
Plaintiff gave one sensitivity training presentation to Emergency
911 system operators, attended one prejudice reduction training
workshop and attended one investigators' training workshop in his
first three months. (Id. at 22-24.) He can not recall how many
complaints were filed in his office during this time. (Id. at
Plaintiff states that "the evaluations which the [sensitivity
training] participants filled out, had all positive comments
about my presentation." (Sproule Affm., Ex. B.) The Commissioners
contend that the attendees were dissatisfied with plaintiff's
performance. Skea notes that plaintiff "apparently tried to
condense a day's — day and a half's training into a three-hour
program . . . the participants were very unhappy with the method
of presentation." (Skea Dep. at 12.) Chichester states that
plaintiff's alteration of the training method was "ill advised"
and that the seminar "did not go over too well." (Chichester Dep.
at 26.) In addition, the Commissioners claim that they were
growing increasingly more uncomfortable with plaintiff's general
communication style. Skea testifies that "[plaintiff's]
statements came off . . . in an abrasive . . . loud manner."
(Skea Dep. at 20; see also Chichester Dep. at 24-25; Colonna
Dep. at 14.)
Plaintiff states that although his job description remained
unchanged after his first three months, his actual duties
consisted of little more than performing investigations.
(Berkowitz. Dep. at 26-27.) Plaintiff also claims that one of the
ex-Commissioners Lee, Chichester or Colonna "specifically told"
him no longer to perform either presentations or community
outreach by this point. (Id. at 27.) Colonna remembers
discussing outreach programs with plaintiff, but does not recall
why they were not implemented. (Colonna Dep. at 13.) Plaintiff
also states that in October 1997, he was invited to participate
in a panel discussion on discrimination in his capacity as ED,
but that Colonna told him the Commissioners would rather have
Mary Simmons, an African-American female Commissioner,
participate instead of him. (Berkowitz Dep. at 79-81.) He claims
that no explanation was provided for the replacement. (Id. at
81.) Colonna does not mention or corroborate this conversation
anywhere in her deposition testimony.
Plaintiff notes that soon after his hiring, Rivera told him he
would receive "periodic evaluations approximately every three
months" regarding his job performance (id. at 33-34), but he
did not receive his first formal evaluation until January 6,
1998. (Monroe Affm., Ex. C.) On this evaluation, plaintiff
received an overall score of twenty-nine points out of a possible
forty-five, for an average "4.5" score out of a possible "9."
(Id.) He received a "5" (out of 9) for "Job Knowledge," a "6"
for both "Quality" and "Quantity" of work, and a "5" for "Work
Habits." (Id.) His lowest mark, a "3," was for "Communication
Skills," and contained the written remarks:
"Ian would benefit from additional training in oral delivery &
should minimize body language (waving arms & hands) during
presentations. When speaking to potential clients, words like
`buddy' should not be used." (Id.) Plaintiff also received a
"4" for "Interpersonal Relationships," with the written remarks:
"Suggest use of an evaluation tool for all public presentations
as feedback will be the best indicator of communication skills."
Finally, in the "Comments" column, the remarks state: "Ian's
strengths are his organizational skills, positive attitude and
level of motivation. It would be advantageous to the position if
a softer approach were made while communicating to the diverse
population calling & coming into the human rights office."
(Id.) Chichester testifies that she wrote all the remarks based
on information provided to her from Colonna. (Chichester Dep. at
21, 24; see also Colonna Dep. at 14.) She states that in her
opinion, plaintiff's monthly reports were "very well organized."
(Chichester Dep. at 22.) Moreover, she notes that his "attitude"
and "motivation level" were positive attributes that a good ED
would want to have. (Id. at 22-23.) She suggested the "softer
approach" because she felt plaintiff's perceived aggressive or
abrasive mannerisms would not endear him to potential
complainants coming into his office. (Id. at 23-24.)
Dissatisfied with his scores, plaintiff claims that he
confronted Chichester about his evaluation and that she told him
the evaluation was good because no one receives scores of 9 or
10. (Berkowitz Dep. at 35.) Chichester's testimony does not
mention this conversation. Plaintiff then submitted a memorandum
in response to his evaluation dated January 13, 1998. (Sproule
Affm., Ex. B.) In it, he expressed dissatisfaction with "[hav]ing
not received any type of feedback from the members of the
Commission or clients about the manner in which I communicate,"
explained his hand gestures as involuntary, and defended his
professional conduct when dealing with clients. (Id.)
Plaintiff's memorandum apparently did not produce the desired
effect, for he received a reply memorandum from Chichester dated
March 17, 1998, ignoring his comments and noting an incident
where plaintiff violated the OCHRC's directives and policy
regarding investigations. (Sproule Affm., Ex. C.)
In late September 1997, Orange County attorney Rick Golden
entered into a Memorandum of Understanding ("MOU") with the OCHRC
whereby all complaints would be forwarded to the New York State
Human Rights Commission ("NYSHRC"). (Chichester Dep. at 25;
Colonna Dep. at 15.) The Commissioners viewed this MOU as
signaling a decreased workload for the ED position, which
lessened the need for its existence in their minds. (Skea Dep. at
25; Chichester Dep. at 34.) Plaintiff contends that the MOU did
not lessen the number of cases he handled, but rather categorized
them differently as NYSHRC complaints. (Berkowitz Dep. at 39-40.)
The Commissioners felt that plaintiff was "nearly argumentative"
with Golden over the MOU (Chichester Dep. at 25), and Colonna
states that she had to publicly reprimand him when he would not
relent. (Colonna Dep. at 15.) The Commissioners were concerned
that plaintiff would not adhere to the limitation on his
investigatory powers (id. at 15-16), which he admittedly did
not. (Berkowitz Dep. at 47.)
Plaintiff states that he immediately informed Chichester of the
situation, who instructed him to recount the events to the full
Commission at the following meeting, which he claims he did.
(Id. at 45-46.) Plaintiff further claims that although the
incident occurred sometime in October 1997, it was never
mentioned to him, and only surfaced in the Commissioners' March
2, 1998 memorandum. (Id. at 46.) However, Colonna testifies
that she confronted plaintiff about the incident at a Fall 1997
monthly meeting. (Colonna Dep. at 15-16.) Chichester adds that
plaintiff "almost [apologized] for having done something that he
was asked not to do (i.e., investigate). But he thought it was
handled well." (Chichester Dep. at 34.) ...