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Askew v. New York State

January 15, 2010

GLORYA C. ASKEW, PLAINTIFF,
v.
NEW YORK STATE; NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; GLENN S. GOORD, COMMISSIONER; BRIAN FISCHER, COMMISSIONER; JOHN NUTTALL, DEPUTY COMMISSIONER FOR PROGRAM SERVICES; KENNETH S. PERLMAN, DEPUTY COMMISSIONER FOR PROGRAM SERVICES; REINALDO MEDINA, ASSISTANT COMMISSIONER AND ACTING DEPUTY COMMISSIONER FOR PROGRAM SERVICES; MARY BOGAN DEBELMONTE, ASSISTANT COMMISSIONER FOR PROGRAM SERVICES; MARK LEONARD, DIRECTOR, DEPARTMENT OF MINISTERIAL, FAMILY, AND VOLUNTEER SERVICES; OMEGA ALSTON, ASSISTANT DIRECTOR, DEPARTMENT OF MINISTERIAL, FAMILY, AND VOLUNTEER SERVICES; ISRAEL RIVERA, ASSOCIATE COMMISSIONER, LABOR RELATIONS; CHARLES HARVEY, DIRECTOR OF DIVERSITY MANAGEMENT; PETER B. BROWN, DIRECTOR OF LABOR RELATIONS; AND MARK MILLER, ASSISTANT INSPECTOR GENERAL, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Glorya Askew commenced this action against defendants New York State and New York State Department of Correctional Services (DOCS) under Title VII of the Civil Rights Act of 1964,*fn1 alleging gender, race, color, and religious discrimination and unlawful retaliation. (See Compl., Dkt. No. 1.) Askew also brought suit for discrimination and deprivation of her First Amendment rights pursuant to 42 U.S.C. §§ 1981 and 1983 against defendants Glenn Goord, Brian Fischer, John Nuttall, Kenneth Perlman, Reinaldo Medina, Mary Bogan DeBelmonte, Mark Leonard, Omega Alston, Israel Rivera, Charles Harvey, Peter Brown, and Mark Miller, in their individual and official capacities. (See id.) Pending is defendants' motion to dismiss. (Dkt. No. 4.) For the reasons that follow, the court grants defendants' motion in part and denies in part.

II. Background*fn2

A. Factual History

Plaintiff Glorya Askew, an African-American Protestant minister with a master's degree in social work and a doctoral degree in ministry and pastoral care, began her employment with DOCS in 1984 as a chaplain. (See Compl. ¶¶ 22, 26, Dkt. No. 1.) Since May 31, 2001, Askew has worked as a Ministerial Program Coordinator (MPC). (See id. at ¶¶ 23, 25.) As an MPC, Askew reports to the Director of Ministerial, Family, and Volunteer Services, Mark Leonard, a white Catholic deacon. (See id. at ¶¶ 14, 23, 35.) As the Protestant MPC, Askew serves as the liaison between (1) the Central Office of DOCS and the Protestant inmate population statewide and (2) the Central Office and the chaplains and staff who serve the inmate population. (See id.) For nineteen years, Askew has also taught courses in ministry and pastoral counseling at the New York Theological Seminary as an adjunct professor. (See id. at ¶ 27.)

As the only female and only African-American Protestant MPC, Askew alleges that DOCS and her supervisors discriminated against her in the manner they approved of meetings and training opportunities, assigned duties and responsibilities, offered job opportunities and speaking appearances, and relocated her from New York City to Albany. (See id. at ¶¶ 28-32.) Askew alleges that Leonard, who was appointed by Deputy Commissioner of Program Services John Nuttall, consistently discriminated against Askew in favor of the Catholic MPC regarding assignments, career advancement opportunities, and training, despite Askew's "greater qualifications, experience and seniority." (See id. at ¶¶ 36-39.) In addition, Askew's white managers and co-workers allegedly referred to her as "Muller's Revenge," which Askew posits refers to her predecessor, Reverend Edwin Muller, and is derived from "Montezuma's Revenge." (See id. at ¶ 31.)

Askew also alleges that in response to complaints made regarding her discriminatory treatment, defendants intentionally subjected her to unlawful retaliation individually and in concert. (See id. at ¶ 33.) On June 13, 2003, Askew met with Leonard to object to discriminatory practices regarding her work assignments, training opportunities, travel reporting, and office staff support. (See id. at ¶ 40.) According to Askew, Leonard told her during this meeting that "[she] should never have gotten [the MPC] position because [she is] black and a woman." (Id.) After raising similar complaints to Leonard on April 28, 2004, Leonard allegedly told Askew to file a formal grievance. (See id. at ¶ 42.) On May 5 and 28, 2004, Askew informally met with Leonard and Nuttall to raise the same issues of discrimination. (See id. at ¶ 43.) According to Askew, she was accused of being a "conflict maker" at the meeting and the discrimination continued "unabated" afterwards. (See id.)

Askew further alleges that DOCS and her supervisors discriminated against her in determining promotions and transfers. In March 2005, Askew applied for and was denied the position of Director of Volunteer Services, which was filled by a "less qualified" white woman. (Id. at ¶ 45.) According to Askew, the personnel office told her that as an MPC she held an appointed position and was therefore not qualified to be Director, even though the job posting did not mention any such requirements. (See id.)

On February 9, 2006, Askew's request to serve in an administrative position in Harlem was denied and Nuttall appointed a white male former-Catholic priest to the position. (See id. at ¶¶ 46-47.) Askew contends that in making this appointment DOCS did not follow the standard practice of submitting the appointee's qualifications to the New York State Council of Churches. (See id. at ¶¶ 47-49.)

On September 21, 2006, Omega Alston, an African-American woman, was appointed Assistant Director of Ministerial Services, a position which Askew repeatedly inquired to Leonard about but was told she was ineligible based on her appointed status. (See id. at ¶¶ 50-51.) However, according to Askew, the position was an appointed position. (See id.) And Askew contends that Alston had neither the experience nor the qualifications for the position. (See id. at ¶¶ 51-52.) After her appointment, Alston supervised Askew and allegedly continued DOCS's discriminatory practices, which included telling others that she was appointed "to clean house" and "get rid of" Askew. (See id. at ¶¶ 53-54.)

In September 2006, DOCS allegedly began to reorganize the ministerial program by, among other things, downgrading Askew's salary and shifting some of the MPCs' authority to Alston. (See id. at ¶ 55.)

According to Askew, this downgrade was "part of [a] continued effort by DOCS to dilute the role of the church in the life of inmates, and to place the chaplains under direct control of secular officials, in order to restrict religious freedom for chaplains and inmates." (Id. at ¶ 56.) Upon learning of Askew's concerns at a meeting in November 2006, Leonard allegedly told Askew he was "going to the New York State Council of Churches and personally have [her] removed from [her] position." (Id. at ¶ 60.) Yet, on November 28, 2006, Askew received a letter from the New York Department of Civil Service stating that her salary downgrade was "an administrative error." (Id. at ¶ 62.)

Askew additionally alleges that DOCS and her supervisors retaliated against her for opposing discriminatory actions and for exercising her rights of freedom of religion and speech. Specifically, Askew contends that while male MPCs were allowed to choose and attend faith-related events, Alston refused to allow Askew to speak at or participate in Protestant faith and community activities around the state, including workshops in New York City and Mount Vernon in January 2007, and in Binghamton in October 2007. (See id. at ¶¶ 63-65, 69.) With regards to the Binghamton workshop, Askew alleges that in spite of seeking Alston's prior approval to attend the workshop, Peter Brown, Director of Labor Relations, charged Askew with official misconduct for attending the meeting without requesting and obtaining prior approval. (See id. at ¶ 70.) During this period, Askew's supervisors also began scrutinizing her travel vouchers. (See id. at ¶ 66.) And in late November 2007, after being notified by the Finance Office that her September and October time records had not been submitted, Askew's confidential personnel file went missing. (See id. at ¶ 72.) According to Askew, she found the file-which contained the unsigned timesheets-on a chair in Leonard's office unsecured and in plain view. (See id. at ¶¶ 73-74.)

On December 1, 2007, Askew filed a formal grievance against her supervisors based on, among other things, their alleged (1) failure to submit Askew's time records to the Finance Office, (2) refusal to meet with Askew over a six-month period, and (3) arbitrary and capricious determinations regarding Askew's responsibilities. (See id. at ¶ 74.) In addition, Askew filed a formal grievance against Leonard for failing to protect her confidential file and for engaging in a pattern of discriminatory conduct. (See id. at ¶ 75.) Askew also filed a grievance by mail to Kenneth Perlman, Deputy Commissioner for Program Services, seeking his review of the grievance proceedings. (See id. at ¶ 76.)

Allegedly in response to Askew's grievance, Leonard issued a formal counseling, which stated that Askew "searched through [his] papers looking for documents." (Id. at ¶ 77.) Askew then submitted a written letter accusing Leonard of discriminatory actions, noting that she feared additional reprisals, and requesting that the formal counseling be removed from her file and that her personnel records be returned to the Personnel Department. (See id.) On December 14, Leonard conducted a grievance hearing, at which Askew was not allowed representation. (See id. at ¶ 78.) On December 17, Alston submitted a letter regarding these hearings to Perlman. (See id. at ¶ 79.) According to Askew, Alston falsely stated in the letter that she discussed the grievances with Askew, that Askew chose to proceed without representation, that Askew was not submitting her travel and budget submission in a timely manner, and that Askew's submissions were difficult to review and understand. (See id. at ¶¶ 79-82.) Following this episode, Askew filed another grievance against Leonard for violating the grievance procedures and for conducting proceedings of which he was the subject. (See id. at ¶ 85.)

In January 2008, Askew met with Mary Bogan DeBelmonte, Assistant Commissioner of Program Services, to review her grievances and to discuss her desire for structural and substantive changes in the department. (Id. at ¶ 86.) DeBelmonte issued a decision denying Askew's request to have Leonard's formal counseling removed from her file. (See id. at ¶ 87.) Askew appealed this determination to Brown, asserting that she was a target of discrimination and retaliation, and that since airing her grievances, she had been investigated by the Inspector General Office, divested of her corporate credit card and travel privileges, and restricted to office hours. (See id. at ¶¶ 88-89.) Askew also notified Brown that she feared reprisals from Leonard based on disparaging and threatening remarks he made to her. (See id. at ¶ 90.)

Leonard subsequently initiated an investigation into Askew's time and expense records and her outside employment. (See id. at ¶ 91.) Mark Miller, Assistant Inspector General, conducted the investigation. (See id. at ¶ 93.) In his report, Miller stated-falsely, according to Askew-that Askew misrepresented her employment with the Seminary as "volunteer work." (See id. at ¶ 94.) And on May 9, 2008, Brown issued a "Notice of Charges" against Askew for submitting false travel and time records, making false statements, attending the October 2007 workshop without approval, and arriving to ...


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