The opinion of the court was delivered by: John T. Curtin United States District Judge
This is an employment discrimination and retaliation case brought pursuant to Title 42 U.S.C. §§ 1981, 1981a, and 1983 and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. The plaintiffs, employees of the New York State Office of Child and Family Services ("NYSOCFS"),*fn1 allege that they were discriminated against and retaliated against because they cooperated in an investigation into discriminatory behavior committed by defendant Baines against a former co-worker, Mark Pasternak, the plaintiff in a related discrimination case (Case No. 00-CV-369). Specifically, plaintiffs allege that in retaliation for their assistance to Pasternak, Baines manipulated their work schedules, fabricated complaints of wrongdoing, deprived them of pay, destroyed their timesheets, and made threats toward them. Plaintiffs allege that defendant Johnson, the Commissioner of the NYSOCFS, has supervisory control over Baines and the power to enjoin Baines' retaliatory and discriminatory conduct. Both defendants Baines and Johnson have moved for summary judgment dismissing the complaint.
At all times relevant to this action, defendant Baines was Facility Director for the NYSOCFS and had supervisory responsibility for two residential facilities, including the Buffalo Evening Reporting Center ("ERC"). Item 51, Exh. 7 ("Baines Dep."), pp. 11-13. Plaintiff James Smith testified in a deposition that he began working for the NYSOCFS in 1980 and became a Youth Division Aide in 1983 or 1984. Item 51, Exh. 1 ("Smith Dep."), pp. 5-8. He was a shop steward with his union, CSEA local 562. Id., p. 17. Smith worked with Melendez, Hicks, and Pasternak at the Buffalo ERC, a facility run by the NYSOCFS. In 1997, plaintiffs met with a NYSOCFS investigator regarding Baines' alleged discrimination toward Mark Pasternak. Id., pp. 49 - 53. Smith told the investigator that Baines had used "slang words" such as "white boy" to refer to Pasternak, and encouraged the other employees to shun Pasternak. Id., p. 57. After he assisted in the investigation, Smith stated that Baines retaliated against him. Id. p. 93. Specifically, Smith stated that his immediate supervisor, Seabron Johnson, issued fabricated disciplinary memos, and that Baines complained that Smith did not leave the facility clean. Id., p. 101. Smith was not disciplined for this, but it was cited in a log book. Id., pp. 102-03.
In his deposition, plaintiff Dwight Hicks testified that he was employed by the NYSOCFS and was supervised by defendant Baines from 1995. Item No. 51, Exhs. 3 -5 ("Hicks Dep."), p. 5. He cooperated in the investigation into Pasternak's allegations of discrimination by Baines in 1996, and testified at Pasternak's Workers' Compensation hearing. Id., pp. 38, 42. Hicks stated that Baines harassed him before he cooperated in the investigation, and the harassment increased after his cooperation. Id., pp. 46, 182. In retaliation for his cooperation with the investigation, Baines allegedly changed the work schedule of the ERC, eliminating shifts so that Hicks and the other plaintiffs could not bid on them. Id., p. 67.
Plaintiff Hicks further testified that on November 5, 1998, he was directed to transport a youth from South Park High School in Buffalo to a NYSOCFS facility in Industry, New York. There was a discrepancy between the time Hicks stated he arrived at Industry and the time reflected in the log at the Industry facility. Hicks was directed to finish his shift in Buffalo when he returned, but he did not report. Hicks stated that he was disciplined for this incident by his immediate supervisor, Seabron Johnson. According to Hicks, Johnson apologized and explained that Baines had directed him to discipline Hicks. Hicks lost two hours of pay for the day, although he did not file a grievance regarding the downward adjustment in his pay. Id., pp. 47 - 52.
In affidavits in opposition to the motions for summary judgment, plaintiffs stated that Baines threatened "bodily harm" to any employees who assisted Pasternak. Item 64, Exh. 3 ("Hicks Affidavit"), ¶ 12; Item 65 ("Smith Affidavit"), ¶ 12. They also stated that Baines threatened that their assistance to Pasternak "may result in closing of agency facilities and their loss of employment." Hicks Affidavit, ¶ 16, Smith Affidavit, ¶ 16. Hicks and Smith stated that following their assistance in the investigation and their testimony at Pasternak's Workers' Compensation hearing, Baines ordered them to perform duties outside their job descriptions, noted false entries in facility log books, purposefully sabotaged the ERC so as to reflect poorly on plaintiffs' job performance, intentionally misplaced documents, and drafted and submitted false memoranda for placement in plaintiffs' personnel files. Hicks Affidavit, ¶ 27; Smith Affidavit, ¶ 27.
Specifically, Hicks and Smith state that Baines "allegedly entered the facility after hours and without logging his presence . . . in the log books as required" on several occasions to compromise the security of the site. Hicks Affidavit, ¶¶ 28, 30, 36; Smith Affidavit, ¶¶ 28, 30, 36. They state that Baines failed to assign sufficient staff to the ERC, causing plaintiffs to work their shifts alone on at least seven occasions in 1998. Hicks Affidavit, ¶¶ 32, 33; Smith Affidavit, ¶¶ 32, 33. Plaintiffs complain that Baines drafted and filed false counseling memoranda for placement in plaintiff Smith's personnel file, resulting in the docking of Smith's pay. Smith Affidavit, ¶¶ 39, 42.*fn2 They also state that Baines "purposefully 'misplaced' key documents and reports" on 16 occasions from 1996 to 1998. Hicks Affidavit, ¶ 41; Smith Affidavit, ¶ 43.
Plaintiffs further state that Baines intentionally refused to pay the utility and food accounts of the ERC, requiring plaintiffs to pay out-of-pocket expenses for the youths' lunches on February 18, 1998. Hicks Affidavit, ¶¶ 42, 43; Smith Affidavit, ¶¶ 44, 45. Plaintiffs complain that Baines altered their work schedules without notice for the purpose of defeating their right to bid on certain schedules, and scheduled shifts in violation of the collective bargaining agreement. Hicks Affidavit, ¶¶ 45-47, 51; Smith Affidavit, ¶47, 52. Plaintiff Smith states that "Baines did deprive deponent and his fellow Plaintiffs of numerous hours of lost work time as Defendant Baines would dock deponent and his fellow Plaintiffs' wages for false allegations of tardiness." Smith Affidavit, ¶ 55; Hicks Affidavit, ¶ 64.
Baines testified that Seabron Johnson prepared a counseling memorandum for plaintiff Hicks regarding the trip to Industry, New York. Seabron Johnson advised Baines that Hicks went to Industry and did not return to Buffalo in a timely manner. Baines Dep., p. 237. Baines played no role in the generation of the counseling memorandum, although he received a copy of it. Id., pp. 236-37.
1. Baines' Motion for Summary Judgment
Baines states that the plaintiffs have alleged five retaliatory acts in their complaint, and argues that the plaintiffs have offered no proof of retaliation beyond conclusory allegations. He also states that plaintiffs have failed to show that they suffered an adverse employment action. Finally, Baines argues that the plaintiffs have similarly failed to show a violation of the New York State Human Rights Law or that they were denied the equal protection of the law.
In response to Baines' motion, plaintiffs argue that they have shown a prima facie case of discrimination and retaliation. They state that Baines threatened that their cooperation with the Pasternak investigation could result in the closing of the ERC, and stated that he would "'get the rats out, especially the white boy.'" Hicks Affidavit, ¶ 17; Smith Affidavit, ¶ 17. Plaintiffs also argue that after they cooperated with the investigation, Baines ordered them to perform duties outside of their job responsibilities, ...