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Bronner v. Catholic Charities of the Roman Catholic Diocese of Syracuse

March 15, 2010


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff Anthony Q. Bronner ("Plaintiff") commenced this action alleging that his employer, Catholic Charities of Broome County ("Defendant" or "Catholic Charities"), discriminated against him based on his race by subjecting him to a hostile work environment, by treating him differently than Caucasian employees with respect to terms and conditions of employment, and by terminating his employment. Plaintiff brings his claims under federal and New York state law.*fn1 Currently before the Court is Defendant's motion for summary judgment.


Plaintiff asserts claims of discrimination or retaliation concerning what appears to be every action by the employer or co-workers during (and following) Plaintiff's thirteen (13) months of employment that he did not agree with or was offended by. See Compl. dkt. # 1. In responding to Defendant's motion for summary judgment, Plaintiff opposes dismissal of some of the claims. In opposition to the motion, Plaintiff has electronically filed a 30-page memorandum of law and one-thousand, seven-hundred and thirty-seven (1,737) pages of documents. See dkt. # 18. In addition, Plaintiff has "traditionally filed" a box of "confidential exhibits" which contains well in excess of four-thousand (4,000) pages of documents.

Most of the items in both sets of documents (electronically filed and traditionally filed) are "Exhibits" in excess of thirty (30) un-paginated pages, with each exhibit consisting of various types of documents. For instance, electronically-filed document 18-42, entitled "Time and Payroll Records, 6/3/05-6/16/05, Plaintiff's Exhibit 36," consists of what appears to be several employees' written time sheets and various computer printouts from the employer. Traditionally-filed document entitled "Catholic Charities Personnel File, Michael Mable, Plaintiff's Exhibit 36" consists of numerous different types of documents that, presumably, were kept in this employee's personnel file.

What is most distressing for the Court is not the sheer volume of documents, but rather the way that Plaintiff's counsel attempts to use the documents. In most instances, Plaintiff simply cites to the documents generally, i.e., a simple cite to the exhibit number, and in many instances, cites to numerous exhibits to support a single proposition. Apparently, Plaintiff or his attorneys expect the Court to wade through the mass of paper to find whether or not the "cite" supports a proposition made by Plaintiff, or creates a genuine issue of material fact. See fn. 8, infra. The Court declines the invitation to do counsel's work. See Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002)("We agree with those circuits that have held that F ED. R. C IV. P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.")(citations omitted); Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000)(The Local Rules require the parties "to clarify the elements of the substantive law which remain at issue because they turn on contested facts" and the Court "is not required to consider what the parties fail to point out.")(internal quotation marks and citations omitted); Riley v. Town of Bethlehem, 5 F. Supp.2d 92, 93 (N.D.N.Y.1998)(By "providing precise citations to the record where the disputed [or undisputed] facts are located, both parties and the Court can move immediately to the gravamen of the case; absent this forced focus, the parties' briefs can remain, as is often the case, as 'two ships passing in the night'.... If the facts supporting the arguments are in the record, counsel should be able to cite to them." ).


Unless indicated otherwise, the following facts are taken from the parties' L.R. 7.1(a)(3) Statements of Material Facts. The Court accepts as true those facts asserted in the Statement of Material Facts that are admitted by the opposing party, or that are supported by admissible evidence and not properly denied. See L.R. 7.1(a)(3). All facts are viewed in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 127 S.Ct. 1769, 1776 (2007).

a. Employment - General

Plaintiff was hired as a Residence Counselor to work in Defendant's Boys of Courage Community Residence. The Boys of Courage Community Residence is a group home operated under the umbrella of the New York State Office of Mental Health (OMH). The residents consist of males between the ages of twelve (12) and eighteen (18) who have been clinically documented as being seriously emotionally disturbed. Most have suffered some form of emotional and physical/sexual abuse, and many, if not all, have been prescribed some form of medication to deal with their emotional and psychological problems. Residents often act out of anger or frustration in some form of socially unacceptable behavior, such as the use of vile and degrading language, including racial slurs.

The overall goal of the Boys of Courage program is to provide a residential setting from which the residents will learn what is, and what is not, acceptable behavior in society. Each resident has an individual service plan formulated by a team of professionals. Additionally, there are "House Rules" for the residents to follow. The House Rules are itemized examples of improper behavior, with each behavior requiring the performance of a task set forth on "good habit cards." The House Rule concept had been reviewed by OMH through its auditing practices and had been accepted as being a proper approach for dealing with the residents' behavioral issues.

Plaintiff interviewed with Boys of Courage Program Supervisor Mark Harding. During the interview, Harding explained that the residents were severely emotionally and psychologically disturbed. Harding further explained that the residents were extremely defiant, and that the Residence Counselors must be prepared to be the subject of verbal abuse from the residents, including swearing and name calling. Plaintiff was hired to work twenty-four hours per week on a schedule to be set by his supervisor. Plaintiff commenced his employment on May 13, 2005.

Upon his hire, Plaintiff was provided with a copy of the Catholic Charities Personnel Policies and Procedures Manual. This provided, inter alia, the policies related to overtime, absences from work, tardiness, and time and attendance. These policies advised that frequent tardiness would be grounds for disciplinary action; accurate daily records had to be kept by each employee and submitted in a timely manner; and overtime work must be approved in advance by an employee's supervisor. Brown Aff. ¶ 11.

b. Employment - Discipline

Defendant contends that, within a few months of Plaintiff's commencement of employment, Program Supervisor Harding began to observe problems with Plaintiff's work performance. In particular, Harding observed that Plaintiff arrived late for work and changed his scheduled work hours without notifying a supervisor. Harding also received complaints from co-workers that Plaintiff was not completing his tasks during his overnight shifts. Initially, Harding informally (verbally) counseled Plaintiff with respect to these issues.

Defendant asserts that Plaintiff's work-related problems continued. Accordingly, on December 27, 2005, Harding formally counseled Plaintiff by issuing him a "Desk Note."*fn2

The Desk Note concerned Plaintiff's failure to complete his daily assigned chores, and his failure to follow the proper procedures for requesting time off and scheduling changes in his work schedule. Plaintiff denies the allegations in the December 27 Desk Note. Pl. Aff. ¶ 6.*fn3 With regard to these and other asserted scheduling violations (discussed below), Plaintiff's denials are based primarily on the fact that the Catholic Charities' Boys of Courage staff schedules have been destroyed. See Stone Aff. ¶ 5.*fn4 From this, Plaintiff asserts that there is "no proof" of when he was assigned certain shifts. Pl. Aff. ¶ 6.

On February 24, 2006, Harding issued Plaintiff another Desk Note, this time on the bases that Plaintiff: (1) had been habitually tardy by approximately 15 minutes each day; (2) regularly left work up to an hour early without obtaining approval from a supervisor; and (3) was putting down more hours than he actually worked on his time sheets. Plaintiff "den[ies] the allegations contained in Desk Note 2/24/06," and asserts:

I was never provided with any dates or times that I was either early or late. Sometimes, I was a few minutes late, but so was the rest of the staff.

No Caucasian employee was disciplined for this infraction.

Pl. Aff. ¶¶ 7-8.

On March 13, 2006, Plaintiff was again formally counseled because he arrived late to his scheduled shift that day. Plaintiff denies the allegation, contending that he was "not provided with any dates or times by my Supervisor when I was supposed to have arrived late or left early." Pl. Aff. ¶ 9.

On May 2, 2006, Plaintiff was formally counseled for failing to appear at his shift on May 1, 2006. Plaintiff was advised via a "Corrective Action Plan" that he would be discharged if this behavior continued. Plaintiff denies "the allegations contained in the 5/2/06 Corrective Action Plan," and asserts:

I never made schedule changes without permission. While I was on vacation, my schedule was changed without my knowledge because Catholic Charities needed my participation in an Incident Investigation involving resident DD and Counselor RK.

Id. ¶ 10.

In July 2006, Residential Team Leader Steve Treiber completed three (3) Corrective Action Plans based on Plaintiff's continuing attendance violations, and his failure to advise supervisors about changes in his hours. Before Treiber provided the counseling documents to Plaintiff, Plaintiff contacted Division Director of Youth Services Tonya Brown asking to discuss certain issues concerning his employment. See Brown Aff., ¶ 15. Plaintiff expressed concern over the use of racial slurs by the residents and told Brown that he did not believe enough was being done to end the conduct. Id. Plaintiff also stated that he did not believe that Treiber or Program Director Brian Fish were effective in dealing with the residents and that they did not take his suggestions for dealing with the racial issues seriously. Id.

Brown suggested that they meet to discuss the matter, and she scheduled a meeting for July 24, 2006. Brown asked Treiber and Fish to attend the meeting. See Brown Aff. ¶ 15; Treiber Aff. 16. Prior to the meeting, Treiber showed Brown the three Corrective Action Plans he had prepared. See Brown Aff. ¶ 16; Treiber Aff. ¶ 17. Treiber and Brown discussed Plaintiff's work violations and history of repeated warnings. Treiber was of the opinion that Plaintiff should be terminated. Brown Aff. ¶ 16; Treiber Aff. ¶ 17. Brown decided, however, to discuss the incidents with Plaintiff at the July 24 th meeting and to stress to Plaintiff that further misconduct would result in his discharge. Brown Aff. ¶ 16; Treiber Aff. ¶ 17.

At the July 24 th meeting, Brown, Treiber, and Plaintiff first discussed issues related to the use of racial language by residents. Brown Aff. ¶ 17.*fn5 Plaintiff expressed his opinion that not enough was being done to address the matter. Id. He suggested that the residents who used racial slurs be required to perform research and write a report regarding some aspect of African-American history. Id. He also suggested that some instruction be provided concerning African-American history. Id. Brown expressed some concern that any formalized education may go beyond the parameters of what Boys of Courage was sanctioned to do by OMH, but she told Plaintiff to put a proposal in writing and she would give it further consideration. Id.; see Treiber Aff. ¶ 18; Bronner Dep., pp. 167-168.

Plaintiff was then presented with the Corrective Action Plans Treiber had prepared. Brown Aff. ¶ 17. Plaintiff disputed the accuracy of the violations, and refused to sign any of them. Id.*fn6 Brown told Plaintiff that she would investigate the incidents further and would refrain from making the three Corrective Action Plans part of his personnel file until she completed her review. Id. Plaintiff was advised, however, that further violations of policy would result in his termination. Id.; see Treiber Aff. ¶ 18.

Approximately one week later, on August 2, 2006, Plaintiff failed to submit his time sheet in a timely manner. As a result, Human Resources Director Ruthanne Bulman issued Plaintiff a Corrective Action Plan that contained a final warning advising that Plaintiff would be terminated if he did not submit his time sheets in a timely manner or if he modified his work schedule without proper approval. See Bulman Aff. ¶ 7.*fn7 Plaintiff "admits... the language contained in the August 2, 2006 Corrective Action Plan.

However, Plaintiff denies that said allegations are true." Pl. Response to Def. L. R. 7.1(a)(3) Stat., ¶ 28 (citing Bronner Affi. ¶ 6; Stone Aff. ¶ 5; Ex. 68; Confidential Exs. 23-48). Despite Plaintiff's denial, the cited evidence fails to create a genuine question of material fact as to the issues addressed by the August 2, 2006 Corrective Action Plan.*fn8

On August 11, 2006, Plaintiff again failed to submit his time sheet in a timely manner. Bulman contacted Brown to inform her of the situation and recommended that Plaintiff be discharged. Brown concurred. As a result, Plaintiff was notified that his employment was terminated effective August 11, 2006. See Bulman Aff. ¶ 8; Brown Aff., ¶ 20; Bronner Dep., pp. 177-181; Exhibit 24-25. Plaintiff asserts, however:

I deny the[se] termination allegations.... I was placed on probation for three days and then terminated. The allegations in the 8/11/06 Memo are false. It never happened. Plaintiff's Exhibit 24. This is why I ...

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