The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Angela Campbell, an African American female, alleges that defendants discriminated against her based on her race and gender in violation of 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. §§ 1981 and 1983; and the N.Y. Exec. Law § 296 ("New York State Human Rights Law" or "NYSHRL"). Presently before the Court is defendants' motion (Dkt. No. 36) pursuant to Fed. R. Civ. P. 56(c) seeking summary judgment and dismissal of plaintiff's complaint.
The record herein contains few undisputed facts. Plaintiff and defendants' witnesses disagree on many of the events that transpired and provide conflicting accounts of the circumstances culminating in plaintiff's termination. In support of the motion, defendants properly filed a Statement of Material Facts pursuant to Local Rule 7.1.*fn1 In response, plaintiff provided a "Rule 56 Statement of Facts in Opposition to Motion for Summary Judgment".
However, plaintiff failed to specifically admit or deny defendants' factual statements as required by Local Rule 7.1. See Michalski v. Home Depot, Inc., 225 F.3d 113, 115 (2d Cir. 2000) (nonmovant did not respond to statement and therefore, factual assertions were uncontested). Therefore, to the extent that defendants' statements are supported by the record, the Court will deem defendants' facts admitted by plaintiff. See Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009). In opposition to the motion, plaintiff provided additional material facts and an affidavit to support those facts. Defendants did not respond to the additional facts. To the extent that plaintiff's affidavit does not contradict her prior deposition testimony, the Court will consider those additional facts in the context of the within motion. See Mack v. U.S., 814 F.2d 120, 124 (2d Cir. 1987). The facts, as discussed herein, are for the relevant time period as referenced in the complaint.
The Onondaga County Department of Corrections ("DOC") operates as a paramilitary organization. Since April 29, 1999, Timothy Cowin has been the Commissioner of Correction, the highest-ranking official. Commissioner Cowin has general oversight of both security and administration of Jamesville Correctional Facility ("Facility"). The Commissioner has the final authority to ultimately render decisions with respect to such personnel matters as appointments, terminations, promotions, probationary terms and disciplinary actions. At the relevant time,
Patricia Mosley was an Assistant Commissioner responsible for administrative operations and Randy Blume was an Assistant Commissioner responsible for security operations. The employees of the Facility rank in descending order from captain, lieutenant, sergeant, senior correction officer, correction officer and correction officer trainee. Commissioner Cowin, Asst. Commissioner Mosley and Asst. Commissioner Blume provided deposition testimony with regard to this matter. In addition, Captain Thomas Tripoli, Lieutenant Kevin McGinn and Lieutenant John Burghardt were employed by the DOC at the relevant time and provided testimony with regard to the within matter.
Plaintiff's Employment with DOC
On January 22, 1998, plaintiff successfully passed the Civil Service Exam. On February 2, 1998, plaintiff was appointed as a Correction Officer Trainee with the DOC and attended orientation for employment with the County. On February 1, 1999, plaintiff completed a probationary period as a Correction Officer Trainee and her job status changed from probationary to permanent Correction Officer. In April 2001, plaintiff received a performance appraisal and was rated "good" in all areas other than attendance for which she received an "acceptable" rating.*fn2 Between 1998 and 2001, plaintiff did not take any civil service examinations pertaining to any positions, promotional or otherwise. At the relevant time, plaintiff was assigned to B-Watch, Squad 6 at the Facility.
Plaintiff's Allegations of Harassment and Discrimination
Plaintiff alleges that in April 1999, Senior Correction Officer Dwight Benjamin made a racially offensive statement/joke in the presence of other officers in the staff dining room. Plaintiff claims that Officer Benjamin asked what the acronym "n.e.o.n." meant and when no one answered, he stated, "niggers excited over nothing". Plaintiff was not present when the joke was allegedly told and she did not personally complain to the administration about the joke. Plaintiff claims that African American officers made a "collective" complaint.
In 2000, Senior Correction Officer Sally Brush, a white female, generated and distributed a flyer through the Facility. The flyer was printed in black and white. The heading of the flyer read as follows:
FOR SALE 1 NEW BASKETBALL CHEAP CHEAP CHEAP CHEAP
Under the heading, two black figures were drawn, one with a black and white striped shirt. Contact information was provided below the picture. Plaintiff was offended by the flyer/poster
which she described as "a hangman with a black face and black body".Plaintiff did not complain to the administration, nor did she personally file any complaints regarding the flyer.
Plaintiff also alleges that in 1990, the Black History Awareness Committee organized events to celebrate Black History Month. Plaintiff claims that White officers would deface flyers publicizing Black History Month and that in 1993, "African American employees" complained to the Commissioner. Plaintiff claims that as a result of the complaints, the Black History Awareness Committee was banished in 2000.*fn3
Employee Appearance and Dress - Policy Directive #0015
In May 2001, the DOC circulated Policy Directive #0015 entitled Employee Appearance and Dress among officers. The directive provided, in pertinent part:
2. Uniformed Female Staff
(1) Hair shall be neatly styled.
(2) Hair ornaments, ribbons, pins, etc., shall not be worn. Conservative combs and barrettes may be used.
On May 27, 2001, plaintiff signed an acknowledgment indicating that she received, read and understood Policy Directive #0015. Commissioner Cowin testified that, "[t]he purpose of th[e] directive . . . is for the security and safety of the officer to have the hair up and away". Correction Officer Brett Robinson's Violation of Appearance and Dress Directive
In March 1999, prior to the enactment of Directive #0015, Correction Officer Brett Robinson, a white male, was found to be in violation of a former directive with the same title regarding employee appearance and dress. On March 30, 1999, Officer Robinson was ordered to get a haircut. Officer Robinson did not comply with the order. On April 15, 1999, after Officer Robinson failed to get a hair cut, the DOC issued Officer Robinson a Counseling Memorandum. On April 22, 1999, as Officer Robinson was still in violation of the directive, the DOC issued an Oral Warning Notation with further orders directing the officer to get a hair cut. On April 29, 1999, Commissioner Cowin prepared a Notice of Charges to Correction Officer Brett Robinson disciplining Officer Robinson for violating the directive. Commissioner Cowin suspended Officer Robinson for 30 days without pay. Officer Robinson was not terminated as a result of violating the directive.*fn4
Plaintiff's Alleged Violation of Employee Appearance and Dress Directive
On August 21, 2001, plaintiff reported to work with her hair braided into 8 braids with 2 barrel-shaped beads at the bottom of each braid (16 beads total).*fn5 At the relevant time, Lt. McGinn was in charge of B-Watch and Capt. Tripoli was Lt. McGinn's supervisor. On August 21, 2001, Capt. Tripoli had a telephone conversation with Asst. Commissioner Blume concerning the beads and it was determined that plaintiff was in violation of Directive #0015. Capt. Tripoli informed Lt. McGinn that the beads were in violation of the directive and had to be removed.
There is conflicting testimony concerning who was plaintiff's direct supervisor on August 21, 2001. According to Lt. McGinn, plaintiff's supervisor was Sgt. Anita Washington. However, plaintiff and Sgt. Washington claim that plaintiff's supervisor was Sgt. Christine DeFoster, a white female.*fn6
Lt. McGinn directed Sgt. Washington to speak with plaintiff and order her to remove the beads. The same day, Sgt. Washington gave plaintiff a copy of the directive and told plaintiff that she "was informed to give them to her". Sgt. Washington did not tell plaintiff to remove the beads from her hair. Plaintiff claims that at the time Sgt. Washington gave her the directive that she asked Sgt. Washington for a harassment form. Plaintiff could not recall whether or not Sgt. Washington gave her the form. Plaintiff testified that she "believed" she filled out a harassment form but that she "could not recall" and further, she could not remember if she submitted the form.*fn7
On August 22, 2001, plaintiff returned to work with the beads in her hair. Lt. McGinn ordered plaintiff to report to staff dining after roll call. At some point that morning, Lt. McGinn directed Sgt. LeFebvre to discuss the situation with plaintiff. Sgt. LeFebvre directed plaintiff to his office to address the issue with Officer Days present.*fn8 Sgt. LeFebvre directed plaintiff to remove the beads. Plaintiff told Sgt. LeFebvre that the beads had been professionally "sewn in" and had to be professionally removed. Sgt. LeFebvre directed plaintiff to leave the Facility using her own time to resolve the hair issues. At the sergeant's request, plaintiff completed a MAS 2026 leave form request and testified that she put her name on the form, wrote that she was told to get her hair done and signed the form.*fn9 After completing the form, plaintiff left the Facility. Capt. Tripoli testified that at the time plaintiff left, she had the next few days off. Asst. Commissioner Blume confirmed that plaintiff's "pass days" (days off) were August 23rd and August 24th.
Plaintiff's Absence from Work on August 25, 2001
In support of their motion, defendants provided an affidavit from Renee Hawker, an Account Clerk Typist in the Payroll Unit of the DOC. Ms. Hawker averred that plaintiff had prior approval for a vacation day on August 25, 2001. However, there is a factual dispute concerning whether plaintiff was aware that her future leave was in jeopardy. Ms. Hawker claims that plaintiff was aware, as early as August 15, 2001, that she no longer had sufficient credits to cover her vacation days.*fn10 Plaintiff claims that she was never advised, at any time, that she could not take vacation that day.
There is also a factual dispute as to whether or not plaintiff was advised that she needed to report to work on Saturday, August 25, 2001. Asst. Commissioner Blume and Capt. Tripoli testified that they did not know if plaintiff was told, at the time that she left the Facility on August 22, 2001, that she was required to report to work on August 25, 2001. Plaintiff claims she was never ordered to report on August 25, 2001. Capt. Tripoli testified that Lt. Conboy telephoned plaintiff and left a message.*fn11 Plaintiff testified that she did not receive a telephone message from any officers or supervisors directing her to report to work on August 25, 2001.
Lt. Burghardt was scheduled to be the B-Watch Commander on duty on August 26, 2001.
Lt. Burghardt testified that Capt. Tripoli telephoned his home on August 25, 2001 and directed Lt. Burghardt to bring plaintiff into his office if she reported to work on August 26, 2001. Lt. Burghardt claims that Capt. Tripoli further instructed Lt. Burghardt to direct plaintiff to write a report and to have another officer present.*fn12
On August 26, 2001 plaintiff reported to work without beads in her hair. Prior to roll call, Lt. Burghardt, called plaintiff into his office where Sgt. Griffin was present.*fn13 Lt. Burghardt instructed plaintiff to write two reports, one "dealing with the beads" and the second "dealing with being AWOL". Plaintiff prepared a report and gave her account of what transpired since August 21, 2001. The last paragraph of plaintiff's report reads as follows:
On 26 Aug 01, when Lt. Burghardt stated I was AWOL on the 25 Aug 01 was not correct. I have an approved 2026 authorizing me the day off. I am requesting a copy of my report and a harrassment [sic] form.
Lt. Burghardt acknowledged receipt of plaintiff's report by initializing and dating the report. Upon completion of the report, Lt. Burghardt requested plaintiff's badge and I.D. Card and escorted plaintiff from the Facility.*fn14 Lt. Burghardt testified that he told plaintiff to call Capt. Tripoli the next day and that plaintiff advised that she was not going to call as she was seeking legal counsel. Plaintiff testified that she was never told by Lt. Burghardt to contact Capt. Tripoli. Plaintiff never returned to the Facility.
Plaintiff did not contact Capt. Tripoli on August 27, 2001 and testified that she did not attempt to make any contact with the Facility after she left on August 26, 2001. There is a factual dispute as to whether or not DOC employees attempted to call plaintiff at her home between August 25th and August 29th. According to Asst. Commissioner Blume, Lt. Conboy called plaintiff's home twice on August 28, 2001. Lt. Conboy allegedly left a message on plaintiff's answering machine directing plaintiff to report to the Facility on August 29, 2001 and to immediately contact the Facility.*fn15 Asst. Commissioner Blume further testified that Capt. Tripoli called plaintiff's home three times on August 28, 2001 and left three messages on plaintiff's answering machine advising her to contact him or Asst. Commissioner Blume.*fn16 Plaintiff did not contact the Facility. Plaintiff testified that she never received any telephone messages on her answering machine directing her to report to work.
On August 29, 2001, a letter of suspension was sent to plaintiff via certified mail. Asst. Commissioner Blume testified that the letter was also hand delivered to plaintiff's house by Capt. Tripoli.*fn17 The letter was approved by Commissioner Cowin.*fn18 The letter advised plaintiff that on August 26, 2001, she was suspended with pay and ordered to contact her Security Captain no later than August 27, 2001. Plaintiff was further advised that due to her failure to contact her Security
Captain or respond to, "subsequent orders via telephone calls that have been made since August 28, 2001" that she was suspended without pay for "refusing to follow job instructions and for your unauthorized absences". The letter further directed plaintiff to immediately contact the Security Captain and/or the Watch Commander for instructions.
The letter was returned to the DOC stamped "REFUSED". Plaintiff claims she never received the August 29, 2001 letter and testified that she never refused to receive certified mail and that no one in her home told her that they refused mail. Plaintiff claims that she had no contact with the DOC until September 24, 2001.
On September 4, 2001, the DOC prepared charges against plaintiff. The Notice of Charges stated, in pertinent part:
#1 - Failure to report to work without notifying the immediate Supervisor 1/2 hour before and/or after starting time, depending on the need for replacement. #3 - Unauthorized absence. #12 - Neglect of job duties or responsibilities. #25 - Failure to follow job instructions, directions or departmental procedures and policies. #38 - Refusal to follow job instructions.
Specification 1: On August 26, 2001, you reported for duty on B-Watch. The B-Watch Commander had you file a report regarding your Absent Without Leave (AWOL) on August 25, 2001.
Upon completing your report, you were relieved from duty and ordered to call the Security Captain on August 27, 2001, no later than 1000 hours. You failed to contact the Security Captain by 1000 hours on August 27, as ordered, and you did not call at all on August 27. On August 28, 2001, several calls were made to your residence in an attempt to make contact with you. Messages were left for you to contact the facility. In addition, you were also ordered to report to the department on August 29, 2001 at 0900 hours. You did not respond to our calls or report at 0900 hours on August 29, 2001.
Again, further attempts were made to contact you, without success, through 1500 hours on August 29. At this time, a certified letter, return receipt, and a regular letter were sent through the mail to your address notifying you that you are suspended without pay for your unauthorized absences. The letters also stated that you were ordered to contact the Security Captain and/or Watch Commander upon receipt of the letter. As of 1200 hours on September 4, 2001, you have not communicated with us, and responded to our letters, and continue to be AWOL. In fact, the certified letter we sent was returned to us on September 4, 2001 marked "REFUSED".
You have been continuously AWOL for more than eight days from August 27, 2001 through September 4, 2001.
Capt. Tripoli went to plaintiff's home with a copy of the charges. Upon finding no one at the residence, Capt. Tripoli deposited the charges in plaintiff's mail slot in her door. Although plaintiff acknowledged that she received the charges, she testified during her deposition that she could not recall when.
On September 24, 2001, Commissioner Cowin prepared a letter to plaintiff advising that as she failed to appeal the charges, she was terminated from her position as Correction Officer, effective September 24, 2001. Plaintiff acknowledged receiving this letter.
On September 27, 2001, plaintiff sent a letter to Commissioner Cowin. Plaintiff claimed that she received the charges on September 20, 2001 and refuted the allegations in the charges. On October 3, 2001, Commissioner Cowin sent a letter to plaintiff advising that as she was terminated, all future correspondence must be directed to the Director of Employee Relations. On October 31, 2001, plaintiff filed a grievance of the charges. On November 9, 2001, the DOC rejected plaintiff's grievance claiming that it was untimely.
Correction Counselor I Position
On January 12, 2002, plaintiff took a civil service examination for the position of Correction Counselor I. According to Commissioner Cowin, plaintiff scored a 75 (ranked 6th on a certified eligibility list) on the examination and pursuant to the Civil Service Law, could not be selected for the position. Commissioner Cowin testified that an African American female who ranked third was hired for the position.*fn19
April 4, 2002 Meeting Addressing Racial Concerns
On April 4, 2002, Commissioner Cowin met with two Onondaga County Legislators, Lovie Winslow and Althea Chaplin, and three African American Correction Officers, Maxine Adams, Marion Jones and Romie Days, to discuss the officers' concerns with regard to a hostile work environment.*fn20 Plaintiff was not present at the meeting. According to Commissioner Cowin, the gathering was "an informational meeting" to discuss the socialization policy and the Civil Service Law as it related to promotions. On May 8, 2002, Officer Adams forwarded a letter to Commissioner Cowin indicating that, "[w]e discussed the issues Black officers feel are causing a stressful, hostile work environment". Officer Adams listed the matters discussed including but not limited to: limited promotional opportunities for minorities; low minority retention through probation period and after probation; inequitable disciplinary handling when dealing with minorities; retaliation for filing complaints; limited training; minority participation in the "honor guard", "black history month program"; and inequitable shift assignments.
Plaintiff's Complaint with the State Division of Human Rights
On September 23, 2002, plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR"). In the complaint, plaintiff alleged that the date of the most recent or continuing discrimination took place on September 24, 2001. Plaintiff charged the County of Onondaga with unlawful acts of discrimination related to her employment due to her race and color in violation of NYS Human Rights Law § 296. Specifically, plaintiff's complaint contained the following allegations:
1. I am African American. I believe that because of this I have been terminated by the respondent.
3. On Tuesday, August 21, 2001 I was given papers by Sgt. Washington, which included the respondent's dress code policy. Sgt. Washington said that she had been ordered to give the papers to me. I was wearing beads in my hair on August 19 without knowing there was a policy against it. It was well known that an [sic] Latino Corrections Officer, Aida Sands, had worn beads and ribbons in her hair while at work, and that a Senior Corrections Officer, Brett Roberts [sic], had worn his hair in a pony tail while at work. I asked Sgt. Washington for a ...