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SMITH v. STATE UNIVERSITY OF NEW YORK

April 23, 2003

DAVID E. SMITH, JR., PLAINTIFF,
v.
STATE UNIVERSITY OF NEW YORK, BY ITS CHANCELLOR ROBERT L. KING AND CHAIRMAN OF ITS BOARD OF TRUSTEES THOMAS F. EGAN; STATE UNIVERSITY OF NEW YORK COLLEGE AT NEW PALTZ, BY ITS PRESIDENT ROGER BOWEN; STATE OF NEW YORK, BY ITS GOVERNOR GEORGE E. PATAKI; CRAIG HAIGHT AND RICHARD BARNHART, INDIVIDUALLY AND AS AIDERS AND ABETTORS, DEFENDANTS.



The opinion of the court was delivered by: Frederick J. Scullin, Jr., Chief United States District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action against Defendants on September 26, 2000. His complaint asserts six causes of action, alleging that Defendants terminated his employment and retaliated against him in violation of Title I and Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and New York Human Rights Law, New York Executive Law § 296. Plaintiff seeks various relief, including back pay, reinstatement or front pay, compensatory damages, punitive damages, and attorneys' fees.

II. BACKGROUND

Plaintiff was appointed to the position of Campus Public Safety Officer for the State University of New York at New Paltz ("SUNY-NP" or "College"), effective June 7, 1999. His appointment was subject to a fifty-two week probationary period. Under New York Civil Service Law, if a probationary employee's performance is not satisfactory, his employment may be terminated at any time after eight weeks and before completion of the maximum period of probation.

When Plaintiff was hired, he did not disclose the fact that he was dyslexic. In fact, when he filled out an information form for the College's Human Resources Department on his first day of work, he checked "Not Disabled" under "Disability Status."

During Plaintiff's first eight weeks on the job, June 7, 1999 to August 6, 1999, the College was on summer break and, therefore, the College's Public Safety Department ("Department") was less busy than normal. Plaintiff's first probationary report, which covered the initial eight-week period, included the following ratings:

"Quantity of Work" — "Good. Officer Smith is [sic] the learning process"
"Quality of Work" — "Good"

"Ability to Work with Others" — "Excellent"

"Work Habits (attendance, neatness, telephone techniques, etc.)" — "Officer Smith has exhibited good attendance, neatness and has demonstrated professionalism on the phone"
"Suggestions for Improvement" — "Maintain a willingness to learn from other Officers, FTOs and Supervisors"
"The following areas must be improved or termination will be recommended" — [Nothing listed]
See Complaint at Exhibit "B."

Plaintiff's second probationary report, which covered the period from August 7, 1999 to October 6, 1999, included the following ratings:

"Quantity of Work" — "Satisfactory"

"Quality of Work" — "Unsatisfactory At This Time: Log entries and written reports need much improvement. Problem exists with numbers such as log numbers and parking tickets"
"Ability to Work with Others" — "Satisfactory"
"Work Habits (attendance, neatness, telephone techniques, etc.)" — "Satisfactory: Numbers, notes and written material must be more accurate"
"Suggestions for Improvement" — "Needs to work more closely with an FTO to improve performance such as report writing, documentation and log entries. Improve performance relevant to desk duties"
"The following areas must be improved or termination will be recommended" — "Writing skills and numerical comprehension are critical to the job and must show improvement"
See Complaint at Exhibit "C."

In addition, according to Defendants, during Plaintiff's second probationary period, Defendant Chief Barnhart witnessed various problems with Plaintiff's job performance, including his "demeanor and his performance" which gave him the impression that "it did not seem like plaintiff was serious about the job, that he got the gist of what the position entailed, what he was supposed to be doing." In addition, Chief Barnhart noticed problems with Plaintiff's log book entries: "there were procedural errors, there were dates missing, there were incomplete names, names that were not indexed," and the entries were "sloppy" and contained spelling errors.

When Plaintiff arrived at work on October 4, 1999, there was a memo in his mail box from Investigator Boden, which asked him to meet with her to discuss problems with his log entries. At the time that Investigator Boden wrote her memo, Plaintiff had told no one about his dyslexia.

Plaintiff met with Investigator Boden and Robert Maines on October 4, 1999. Investigator Boden told Plaintiff that his log entries were not acceptable because names were not indexed, numbers were not correct, people were not identified, and there were procedural errors as well as other errors and illegibility. In response to these concerns, Plaintiff told Investigator Boden and Mr. Maines that he was dyslexic. Plaintiff alleges that Investigator Boden then made a number of disparaging comments about Plaintiff and suggested that he "rethink his career."*fn1 Plaintiff's third probationary report for the eight week period from October 7, 1999 to December 6, 1999, included the following ratings:

"Quantity of Work" — "Average"

"Quality of Work" — "Slight improvement in quality of written work, but problems exist in other areas (see work habits below)"
"Ability to Work with Others" — "Poor ability to follow supervisory direction and take appropriate corrective action in a timely manner (see work habits below). Fails to assume responsibility for his actions or inactions"
"Work Habits (attendance, neatness, telephone techniques, etc.)" — "Attendance: satisfactory; neatness: satisfactory; telephone techniques, need improvement.
Officer Smith does not exhibit the appropriate attitude and aptitude for a University Police Officer position. While the quality of his written work has shown slight improvement since his last evaluation, after much prompting and remedial action, there continues to be ongoing problems in other work related areas.

Officer Smith has had to be repeatedly advised to rectify a problem with his and a friend's campus parking decal. He placed his faculty/staff parking decal, purchased on 09/23/99, on a friend's vehicle who happens to be a resident student. As a result, this student avoided having to pay the $60.00 student parking fee. This was not corrected until 11/22/99.

Furthermore, the Officer voided a campus parking ticket for the aforementioned individual on 9/16/99, without authorization, under the pretense that the friend possessed a valid parking decal; when, in fact, she did not. The Officer also requested on 9/27/99, that a parking ticket he received for not having a valid decal be voided. Officer Smith has also failed, to date, to pay an outstanding parking ticket issued on 11/18/99 for not have [sic] a current decal on his vehicle.

Not only do the above stated problems exhibit a severe lack of good judgment and ethics (both qualities necessary for a police officer), they are violations of campus policies and New York State Law.

"Suggestions for Improvement" — "The overall consensus is that further time and effort would not effectively improve Officer Smith's job performance"
"The following areas must be improved or termination will be recommended" — "Termination ...

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