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Cunningham v. New York State Dep't of Labor

April 30, 2010


The opinion of the court was delivered by: David N. Hurd United States District Judge



Plaintiff Michael Cunningham ("plaintiff") brings suit against defendants New York State Department of Labor ("NYDOL"), former NYDOL Commissioner Linda Angello, former NYDOL Deputy Commissioner Mary Hines, and NYDOL Counsel Patricia Rhodes-Hoover. Pursuant to the mandate of the Second Circuit Court of Appeals, see Cunningham v. N.Y. Dep't of Labor 326 F. App'x 617 (2d Cir. 2009),*fn1 the only remaining question is whether defendants' motion for summary judgment should be granted as to plaintiff's claims of unlawful retaliation arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and 42 U.S.C. § 1983. The parties have submitted their briefs in response to the limited issues identified in the appellate court's summary order, see Cunningham, 326 F. App'x at 621 & n.3, and defendants' motion was considered without further oral argument.


A. Facts

All of the following facts are undisputed unless otherwise indicated. (See Defs.' Statement of Material Facts, Dkt. No. 36-96; Pl.'s Resp. to Defs.' Statement of Material Facts, Dkt. No. 40-2.) In 1988, plaintiff was hired as the Director of NYDOL's Office of Staff and Organizational Development ("OSOD"). As the OSOD Director, plaintiff supervises approximately 20 staff members and is responsible for overseeing the training of NYDOL employees throughout the state. He and his staff are also responsible for arranging a number of state-wide training programs, including "CSI conferences."*fn2

On February 16, 2000, plaintiff forwarded a lewd cartoon to a co-worker via email on his work computer. Following an investigation conducted by the New York State Inspector General's Office, plaintiff agreed to forfeit one week of annual leave in exchange for NYDOL's decision to drop its disciplinary charges.

In March of 2001, defendant Angello was appointed NYDOL Commissioner. She later hired defendant Hines as her Deputy Commissioner for Administration in June of 2001. At that time, plaintiff's most immediate supervisor in NYDOL's chain of command was Associate Commissioner of Human Resources Jim Leary. As a division director, Mr. Leary reported directly to defendant Hines.

On May 13, 2002, plaintiff approached defendant Hines to voice his concern about the lack of minorities being promoted at NYDOL. On February 10, 2003, he filed a complaint with the United States Department of Labor's Civil Rights Center ("CRC") alleging that the disciplinary charges stemming from the lewd email he sent to a co-worker were the result of unlawful racial discrimination. Plaintiff also asserted in his CRC complaint that minorities at NYDOL were frequently subject to unequal treatment and that he personally had been subject to a hostile work environment on account of his status as an African-American.

In or shortly before March of 2004, plaintiff reiterated his concerns over the lack of minority promotions to the Director of NYDOL's Division of Equal Employment Opportunity, Andrew Adams. Plaintiff raised the same promotion issues with Mr. Leary at the end of March and again in the beginning of April of 2004.

On April 14, 2004, defendant Hines sent an email to several NYDOL employees, including plaintiff, asking them to attend then-Governor Pataki's annual prayer breakfast on May 11, 2004. On April 15, 2004, plaintiff sent his son's résumé to Mr. Leary in connection with his son's application for a temporary job with NYDOL. Plaintiff's son was hired effective April 22, 2004 as a temporary employee within the NYDOL's Division of Labor Standards. Defendant Hines objected to the decision to hire plaintiff's son. On May 4, 2004, an article in the Albany Times Union newspaper reported that defendant Hines had asked NYDOL employees to attend the Governor's prayer breakfast.

On June 25, 2004, the parties became aware that OSOD Assistant Director Pat Bell would require an extended leave of absence. Because Ms. Bell was responsible for, among other things, supervising the Albany office OSOD staff, her absence created a lack of adequate on-site supervision. Defendant Hines and plaintiff met on June 30, 2004 to discuss how to address these supervision issues. After deciding plaintiff would assume Ms. Bell's on-site supervision duties, his office was moved closer to OSOD staff on the first floor of the NYDOL building on July 30, 2004.

On August 2, 2004, plaintiff sent a memo to Mr. Leary and Executive Deputy Commissioner Dennis Ryan alleging that defendant Hines's decision to relocate his office to the first floor was an act of retaliation in response to his prior CRC complaint of racial discrimination and a hostile work environment. On August 26, 2004, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") asserting the same allegation of retaliation.

On September 9, 2004, defendant Hines inquired with Mr. Leary about plaintiff's upcoming work travel plans. In particular, defendant Hines asked why plaintiff intended to travel to New York City despite there being no meetings scheduled there. She also stated to Mr. Leary that she thought it was unnecessary for plaintiff to travel to NYDOL's New York City office because an Assistant Director was already in place there.

On October 8, 2004, Mr. Leary informed plaintiff that NYDOL would no longer host CSI conferences due to a lack of funding. That same day, Mr. Leary and plaintiff discussed defendant Hines's concerns over his travel schedule. Plaintiff was asked to provide more detail as to the nature of his work-related travel, and Mr. Leary explained that plaintiff should rely more heavily upon on-site staff members to handle office-specific matters in lieu of him traveling between Albany and other NYDOL offices. As a result, plaintiff cancelled his visits to the New York City office that did not involve scheduled staff meetings. On October 13, 2004, NYDOL received a copy of plaintiff's EEOC complaint.

Plaintiff drove to the OSOD office in New York City on October 14, 2004 for a meeting with a co-worker. After the meeting, plaintiff reported to his supervisors that he returned to his hotel room at 3:00 p.m. to make work-related phone calls, but his cell phone records do not provide details as to whom he called. That same day, defendant Hines learned that plaintiff had failed to attend a scheduled training meeting in New York City earlier in the morning. She also noted that plaintiff could have attended the meetings via video-conference instead of using NYDOL funds to travel to the OSOD office in New York City. Defendant Hines was particularly frustrated with plaintiff's decision to travel to New York City because he himself had repeatedly urged other NYDOL Directors to use videoconferencing as a cost saving measure. After discussing plaintiff's travels with defendant Angello, defendant Hines asked the New York State Inspector General to investigate whether plaintiff's activities were work-related.

NYDOL held a Welfare-to-Work conference in Syracuse from November 30, 2004 to December 2, 2004. Plaintiff contends he was intentionally excluded from the planning and coordinating of the conference. In contrast, defendants maintain that plaintiff was mistakenly omitted from initial correspondence related to the conference. It is undisputed that plaintiff was eventually made privy to communications related to Welfare-to-Work conferences.

The Inspector General issued his investigative report on December 14, 2004. The report reflected that plaintiff had worked two hours less than he had claimed during his time in New York City. As a result, Mr. Leary admonished plaintiff for failing to work a full day and for not being more mindful of how to minimize his travel costs. Approximately two weeks later, an article published in the Albany Times Union newspaper reported that plaintiff had accused defendant Hines of retaliating ...

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