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Okon v. Appia

May 28, 2008


The opinion of the court was delivered by: Sifton, Senior Judge


Plaintiff brings this action alleging that defendants discriminated against him on the basis of his sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1983 ("Section 1983" or "§ 1983"), New York State Executive Law § 296, Sections 8-107 et seq. of the Administrative Code of the City of New York, and New York State Labor Law §§ 198(1-a) and 198-c. Now before this Court is defendants' motion for summary judgment. For the reasons set forth below, defendants' motion is granted.


The following facts are drawn from the parties' depositions, declarations, exhibits, and Local Rule 56.1 statements. Disputes are noted.

Plaintiff was hired by defendant Salvation Army on June 16, 1997 to work at the Bond Street Drop-in Center (the "Center"), as a case manager. Def. Ex. E; Pl. Ex. 59. The Center offers twenty-four hour services for homeless individuals, known within the Center as clients. Def. Ex. NN. As a case manager at the Center, plaintiff's duties included meeting with and assessing clients' suitability for the center, developing service plans to help clients move towards housing and employment, helping clients apply to assistance and training programs, and otherwise tracking the progress of his clients. Id. He was also required to attend staff meetings scheduled by his direct supervisor, the Social Services Supervisor. Id. Plaintiff signed a statement that he had read his job description and would adhere to The Salvation Army's policies. Id.

On February 13, 1998, a "Record of Offense and Warning" was issued to plaintiff. Def. Ex. H; Pl. Ex. 27. Plaintiff had received holiday pay for July 4, 1997, but later requested a day off based on his having worked on July 4. Id. The Record warned plaintiff that "[o]nce your [sic] paid for a Holiday - you cannot request the same day to be off. You no longer have the day once you're paid for it." Id. Plaintiff disputed the violation, writing in the explanation section of the form:

As per Mr. Alfred J. Peck Memorandum dated 12/23/97.

As an exempt employee, I am not entitled to paid Holidays, but I can take the time worked in a latered [sic] date as compensatory time. Please check your records properly because I will strongly reject any negative record in my file. Thanking in Advance [sic] for your cooperation.

Id. The form was signed by plaintiff's then supervisor, Yvonne Miller, as well as plaintiff.

On January 11, 2000, plaintiff received another warning, in the form of a memorandum from Christopher Garcia, Director of Social Services, which stated that plaintiff was being "formally . . . reprimanded for failure to return to work on a timely basis." Def. Ex. I; Pl. Ex. 33. Plaintiff had failed to return from approved leave on January 3, 2000. Id.; see also Def Ex. J. In a conversation with Garcia and Miller on January 10, plaintiff told them that he had been ill while on leave and that his doctor had sent a note stating plaintiff would have to be out for a longer period. Id. Defendant Salvation Army failed to receive this note*fn1 and the memorandum of warning made clear that it was plaintiff's responsibility to communicate his situation directly. Id. The memorandum concluded that if plaintiff again failed to return to work when expected without notification, he could be suspended or terminated. Id. A follow-up memorandum, also from Garcia, dated January 11, 2000, stated that, as a result of plaintiff's failure to return to work on January 3 without notice, plaintiff would not be paid for the period of January 3, 2000 through January 7, 2000 and that a letter of reprimand would be placed in plaintiff's file. Def. Ex. J; Pl. Ex. 34.

On February 9, 2000 Garcia sent plaintiff another memorandum (not annexed as an exhibit to the motions), chastising him for submitting a required statistical report late. See Def. Ex. L; Pl. Ex. 29. Plaintiff responded on February 10, 2000. Id. Plaintiff asserted that the delay resulted from the fact that, on the days the statistics needed to be done, he was the only case manager on duty and had other duties to which to attend. Id. He also stated that he had not been given any instruction on how to complete his report, had received one page late, and had taken the report home to work on in his spare time. Id. Garcia communicated, by memorandum dated February 16, 2000, that he did not believe any of plaintiff's explanations justified plaintiff's tardy submission and that, in the future, he would be monitoring plaintiff's submissions of his statistics for timeliness and accuracy. Def. Ex. M; Pl. Ex. 30.

On February 16, 2000, Miller sent a memorandum to Garcia concerning plaintiff. Having reviewed plaintiff's case files, Miller expressed "grave concern regarding the status of [plaintiff's] case records. Presently [plaintiff] has 128 record [sic] in his file cabinet, without exception each and every record that I reviewed is out of compliance [with The Salvation Army protocols]." Def. Ex. K; Pl. Ex. 28. Miller continued that she would perform a more detailed assessment and requested an emergency meeting with plaintiff and Garcia to develop a plan to resolve the problem. Id.

By memorandum dated March 1, 2000, Garcia expressed this concern to plaintiff. Def. Ex. N; Pl. Ex. 31. Garcia noted several specific deficiencies, including a lack of client progress notes, failure to meet with a client for a service plan review, and an inability of other personnel to find necessary information when plaintiff was out of the office. Id. Garcia also noted that, of all the Center's case managers, Garcia received the most complaints about plaintiff and requests to transfer to other case managers from plaintiff's clients. Id. Garcia scheduled a meeting with plaintiff and Miller for March 7, 2000 to follow up on these issues. Id.

The meeting occurred and Garcia set forth the recommendations from the March 7 meeting in a memorandum of the same date. Def. Ex. O; Pl. Ex. 32. Plaintiff was directed to implement the following recommendations by March 24, 2000 or be subject to probation or termination:

1. All case records must be brought up to date.

(A) all intakes must be completed.

(B) all clients that are no longer here, cases must be closed.

(C) progress notes must accompanied [sic] all of the record

2. Record must be kept up to date on a regular bases [sic].

3. Greater effort must be made to close cases that have been here more then [sic] a year.

4. Statistical reports must be submitted on a timely basis.

5. Assigned group activity must be done.

6. Clients' [sic] must be seen on a timely bases [sic], as well as followed-up.

Id. (emphasis in original). The memorandum was signed by Garcia and plaintiff. Id.

In July 2002, defendant Tracy Appia was transferred to the Center as the Program Director.*fn2 See Pl. Ex. 9; Ex. A to Decl. of T. Appia. As Program Director at the Center, Appia had full responsibility for the Center's operation, directly supervising the Social Service Supervisors (later called Social Service Directors), Officer Manager, and Operations Director, and indirectly supervising other staff, including case managers. Id. She was also required to assure adequate staff for service coverage and to make recommendations with respect to all personnel actions. Id. Although plaintiff's immediate supervisor would have been a Social Service Supervisor, Appia often supervised plaintiff directly as the intermediate position was frequently vacant. Pl. Ex. 15 (Appia Dep. at 80).

According to plaintiff, between July 16, 2002 and his termination on April 7, 2005, Appia touched, squeezed, or pinched plaintiff approximately 3,500 times. Pl. Ex. 10 (Okon Dep. at 48-53, 103). The first pinch occurred after plaintiff had given Appia a ride home. Id. at 60-61. When they arrived at her home, she asked plaintiff to come in. He declined, but as she was getting out of the car, Appia squeezed plaintiff's face and said "I'll see you tomorrow." Id. at 64-65. The following week, plaintiff testified that Appia pinched him multiple times over several days, including one day when she pinched him around his groin while they were meeting in his office. Id. at 75-77. After she pinched his groin, plaintiff told Appia to stop, as he did not like being pinched. Id. at 82. Plaintiff specifically recalled being pinched on the buttock sometime during the week of July 22, 2002, id. at 97-98, after which he again told her to stop. Id. at 90-92. He also testified that she pinched him on the neck, groin, and back during the week of September 2, 2002. Id. at 101. Though the plaintiff testified the pinching continued until his termination, plaintiff was unable to recall other specific dates.*fn3

Soon after Appia's arrival at the Center, memoranda were sent on August 19 and August 26, 2002, informing employees of a mandatory staff meeting scheduled for 1 p.m. on August 29. Def. Exs. Q and R; Pl. Exs. 18 and 19. Plaintiff did not attend the meeting. On August 30, 2002, defendant Appia sent plaintiff a memorandum following up a verbal warning he received after missing the August 29 meeting. After referring to the memoranda regarding the meeting, Appia wrote, "[b]e advised that staff meetings are a part of your ongoing professional development and are a required element of ...

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