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Donna Clark v. Jeanine Dominique; Thomas P. Dinapoli; Pamela Mcmahon; Al Brooks

June 28, 2011


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


I. Introduction

Pro se plaintiff Donna Clark commenced this action against defendants Jeanine Dominique, Thomas DiNapoli, Pamela McMahon, Al Brooks, Kathleen O'Brien Nejame, Mary Kent, Richard Ciulla, Mark Worden, Nancy Groenwegen, Caroline Ahl, J. Dennis Hannrahan, the Office of the State Comptroller, the New York State Department of Civil Service, the New York State Civil Service Commission, the New York State Employee's Health Service, and Maria Concetta Steinbach (State defendants), Paul Zonderman, and the Civil Service Employees Association (CSEA), asserting claims pursuant to Title VII of the Civil Rights Act of 1964*fn1 ; Titles I,*fn2 II,*fn3 and V*fn4 of the Americans with Disabilities Act (ADA); the Age Discrimination in Employment Act (ADEA)*fn5 ; the Family and Medical Leave Act (FMLA)*fn6 ; 42 U.S.C. §§ 1981, 1983, and 1985 for alleged violations of the First, Fourth, and Fourteenth Amendments of the United States Constitution; the New York State Constitution; New York State Civil Service Law; and New York State Human Rights Law (NYSHRL).*fn7 (See Compl., Dkt. No. 1.) Pending are CSEA, Zonderman, and State defendants' motions to dismiss, (Dkt. Nos. 17, 18, 20), and Clark's motions to strike defendants' submissions and to amend her complaint, (Dkt. No. 33). For the reasons that follow, the defendants' motions are granted, Clark's motions are denied, and Clark's complaint is dismissed.

II. Background

A. Factual History

Plaintiff Donna Clark, a fifty-two year old "half Sicilian, Christian" woman, was employed by the Office of the New York State Comptroller (OSC) as a Calculation Clerk I, a tenured position. (Compl. ¶¶ 5, 10, 34, Dkt. No. 1.) Clark allegedly suffers from several disabilities, including post-concussive syndrome, post-traumatic stress disorder, photophobia, mild traumatic brain injury, headaches, and word retrieval problems. (See id. at ¶ 35.) According to Clark, at some point during her employment, she requested a desk change, which was provided, and a light cover,*fn8 a chair, and a different parking spot, which were denied. (See id. at ¶¶ 36, 270 ("Reasonable accommodation was never addressed ....").)

On October 26, 2006, Clark took a leave of absence pursuant to FMLA. (See id. at ¶¶ 128, 191, 289.) Clark returned to work on December 4, 2006. (See id.) Upon her return, OSC monitored Clark's computer activity, which Clark appears to allege was done in retaliation for her taking a leave of absence. (See id. at ¶ 191.)

On February 27, 2007, Clark "was illegally confined to her cubicle at OSC due to [defendant] Mary Kent verbally attacking [her]." (Id. at ¶ 41; see also id. at ¶ 56 ("Mary Kent's harassment and abuse ... reache[d] the level of seriousness ...."); id. at ¶ 251 ("Mary Kent admits to her aggressive nature.").) According to Clark, this incident was preceded by an incident the previous day, February 26, where Kent, an Employee Retirement System Examiner with OSC, approached Clark and screamed at her, "You are a f*** nut. Get in your cubicle and do some F***ing work, you nut. You are scaring people, because you are a f***ing nut." (Id. at ¶ 265.) In response, Clark alleges that she "notif[ied James] Normile, [defendant Jeanine] Dominique, and Gonzalez [that] she would leave the job unless the harassment and tortured [sic] stopped immediately." (Id. at ¶ 264.) Clark further alleges that she told Dominique that "she was leaving on March 2, 2007." (Id.)

According to Clark, OSC then began taking action against Clark on the basis that "her continued presence on the job would interfere with operations."*fn9 (Id. ta ¶ 43.) On March 1, 2007, OSC handed Clark a letter notifying her of its belief that she was "unfit to perform [her] duties," locked her out of work on an emergency basis,*fn10 and denied her request for a pre-lockout hearing.*fn11 (See id. at ¶¶ 10, 44, 77, 91.) Clark thereafter requested a due process hearing and filed several objections regarding, inter alia, the absence of an emergency that would warrant an immediate, pre-hearing lockout. (See id. at ¶¶ 44, 82, 110.)
On March 12, 2007, Dominique allegedly contacted Employees Health Services (EHS), a unit of defendant New York State Department of Civil Service (DCS), to request that an MMPI-2 personality test be administered to Clark.*fn12 (See id. at ¶ 81.) Shortly thereafter, by letter dated March 16, 2007, OSC advised Clark that she was scheduled to undergo a medical examination on March 21, 2007.*fn13 (See id. at ¶ 84.) Accordingly, on March 21, Clark reported to the EHS facility and underwent a series of tests, including an MMPI-2 test, that were administered by John Wapner, a psychologist, Dr. Nieves, a psychiatrist, and other "clerical personnel." (See id. at ¶¶ 85-89, 101-103.) Clark contends, however, that these tests were impermissible and that Drs. Wapner and Nieves were not authorized to examine her because they were not selected by the Civil Service Commission (CSC).*fn14 (See id.) Defendant Richard Ciulla, a medical doctor, subsequently reviewed Clark's records, including the March 21 examination and test results, and concluded that Clark was unfit to perform her duties and constituted a danger to OSC. (See id. at ¶¶ 87-88.) But, while Clark admits that Dr. Ciulla was properly authorized by CSC, she nonetheless charges that Dr. Ciulla "abused his badge of authority and ... is liable to [her] for injuries due to his disparate treatment, and reckless act of finding [her] unfit without meeting her."*fn15 (Id. at ¶¶ 88, 99, 105-06, 108; see also id. at ¶ 176 ("Dr. Ciulla's finding of unfitness is arbitrary and without merit ... [because h]e never met [with Clark] ....").) Clark further charges Dr. Ciulla with unlawfully "caus[ing] emails and HIPAA protected doctor's note from [Clark's] primary doctor to be faxed to the Albany County Mental Health Department" in violation of her privacy rights. (Id. at ¶ 104.) Drs. Wapner, Nieves, and Ciulla's reports and findings were provided to Clark in April 2007.*fn16 (See id. at ¶ 107.)

From January 10 to December 30, 2008, with the lockout still in place, hearings were held pursuant to § 72 of the New York Civil Service Law regarding Clark's employment status. (See id. at ¶ 115.) Defendant Paul Zonderman was selected by OSC and Clark to serve as the independent hearing officer. (See id. at ¶ 58.) However, Clark contends that in addition to delaying the hearing, OSC refused to provide Clark with a complete list of eligible hearing officers. (See id. at ¶¶ 58, 119.)

The hearings themselves, according to Clark, including the manner in which they were conducted, the testimony that was offered, and the evidence that was admitted, violated her due process rights. Clark alleges that Zonderman "repeatedly blocked her attempts to submit [certain] evidence," "precluded [her from] engag[ing] in an adversarial hearing," and "denied [her] an opportunity to appear ... to present direct evidence[,] call witnesses[,] ... confront her accusers[,] ... and give direct testimony." (Id. at ¶¶ 59-62, 115, 206-15; see also id. at ¶ 108 ("[D]elay and stall tactics were deployed by Pamela McMahon, Paul Zonderman, and Richard Ciulla[] to preclude [Clark] from creating a record and entering evidence.").) Clark speculates that Zonderman "demonstrated his prejudices against her" both "prior to meeting her by [making] arbitrary and unsubstantiated interim finding[s]," and during the hearings by denying her motion for summary judgment, "ma[king] disparaging remarks against [her]," and engaging in "unilateral communications" with OSC and its agents. (Id. at ¶¶ 66, 108, 118.) Clark further speculates that Zonderman "acted in concert ... [with] the other defendants ... to take away [her] property without the due process of law." (Id. at ¶¶ 67; see also id. at ¶ 78 ("[Defendants] all conspired to deprive [Clark of] an opportunity to defend against the [charges].").) And according to Clark's unsubstantiated allegations, "Zonderman withheld his recommendation pending promises by OSC to pay him an inflated amount of over $34,000." (Id. at 108; see also id. at ¶¶ 156, 186-88, 252.)

With regard to the testimony offered at the hearings,*fn17 Clark makes various vague and ill-defined assertions against Dominique, Drs. Ciulla and Wapner, OSC Attorney Kathleen O'Brien Nejame, and CSEA representative Mark Unser. As to Dominique, Clark generally charges that she "blurted out numerous slanderous statements on the record." (Id. at ¶ 120.) As to Drs. Ciulla and Wapner's testimony, Clark reasserts that they lacked authority to perform any tests or make any findings, and accordingly should not have been permitted to testify. (See id. at ¶¶ 137-38.) Clark also baldly alleges that in exchange for Dr. Wapner's testimony, defendants OSC Attorney Pamela McMahon and EHS Director Maria Concetta Steinbach illegally gave Dr. Wapner a permanent position with the New York State Department of Correctional Services. (See id. at ¶¶ 172-73.) And as to Nejame and Unser, Clark alleges that Unser testified about an incident in which Unser reported to Nejame that he was threatened by Clark, who told him "I will take you down; you don't know what your dealing with; don't mess with me."*fn18 (Id. at ¶¶ 126-30.) Consistent with Unser's account, Nejame testified to the same incident, stating that she was convinced that Unser sincerely felt threatened. (Id.) In fact, Clark admits that Nejame's notes reinforced her testimony, as they include an entry that Unser told Nejame that "Clark thinks I am trying to take her down." (Id.) Clark contends, however, that the incident Unser and Nejame testified about could not have occurred, and that Nejame and Unser's testimony were therefore false, since it occurred in November 2006, while Clark was out on leave. (See id.) In addition, Clark alleges, vaguely, that Zonderman impermissibly allowed Nejame to (1) proffer testimony about newspaper entries made by Clark in which she discussed her private and religious beliefs, and (2) submit Clark's diary entries and religious writings into evidence.*fn19 (See id. at ¶¶ 147-48.)

At the conclusion of the § 72 hearings, defendant OSC Attorney Al Brooks filed a motion for summary judgment, which Clark labels "illegal" and "fraudulent."*fn20 (See id. at ¶¶ 20, 116.)

Clark's employment was terminated on July 7, 2009.*fn21 (See id. at ¶¶ 10, 13.) She contends that OSC, DCS, and CSEA were all notified of her termination prior to July 7. (See id. at ¶ 52.) Clark further alleges that in an attempt to prevent her termination, she wrote letters to Greg Hurd and defendants OSC, DCS, CSC, McMahon, Dominique, DCS employee Mark

Clark requests that this testimony be "stricken from the hearing record," citing "the appropriate aviation authority" and the fact that "no planes are visible from the area Unser alleges he was standing with [Clark] when she allegedly made this statement." (Id.) Then, Clark cryptically refers to allegations made during the hearing that after she "complain[ed] about ethnic slurs," her "co-workers were rounded up by administration and told to document each and every instance from thereon if they felt [she] was doing anything wrong or acting inappropriately in the workplace." (Id. at ¶¶ 132-33.) Later in her complaint, Clark states, without any context, that "documents turned over to [her] reference planes, turbans, and 911, Taliban." (Id. at ¶ 232.) And Clark also states, "[d]ocuments show that Kent told the employer, 'Clark was bizarre in high school,' ... [and] 'Clark dresses like the Taliban.'" (Id. at ¶ 268.)

Worden, and DCS Commissioner and CSC President Nancy Groenwegen. (See id. at ¶ 53.) Clark contacted CSEA to request legal representation, which CSEA allegedly denied. (See id. at ¶ 54.)

Clark administratively appealed her termination to CSC. (See id. at ¶¶ 55, 157.) Clark alleges that Worden appeared before CSC, and when asked what caused the delay in holding the § 72 hearings, attributed the delay to scheduling conflicts. (See id. at ¶ 157.) Clark contends that the delay was actually based on Worden and other defendants' attempts to deprive her of a hearing. (See id. at ¶¶ 157, 170.) Thus, Worden "acted in concert and as the middle man between [DCS], OSC, [CSEA], and EHS, to deprive [Clark of] her right to be notified of the allegations against her and challenge those allegations in a timely hearing." (Id. at ¶ 234.)

CSC denied Clark's appeal on August 24, 2010. (See id. at ¶¶ 55, 158.) This denial forms the basis for Clark's due process claims against defendants Worden, Groenwegen, and CSC Commissioners Ahl and Dennis Hannrahan. (See id. at ¶¶ 27-29, 158.) According to Clark, Groenwegen, Ahl, and Hannrahan "refused to allow her to create a verbatim record," "ignore[d] her statements and documents including several doctors['] statements," and "erroneously abuse[d] their power [by] stat[ing] in their decision that [Clark's] doctor made no statements as to her fitness." (Id. at ¶¶ 178-81.) And similar to her accusations against Zonderman, Clark alleges that Groenwegen, Ahl, Hannrahan, and Worden relied on "unilateral communications with [OSC representatives] to come up with their unsubstantiated denial." (Id. at ¶ 275.)

B. Procedural History

On April 1, 2010, Clark filed a complaint with the Equal Employment Opportunity Commission (EEOC).*fn22 (See id. ¶ 6.) In June 2010, after dismissing her complaint, the EEOC issued a series of right-to-sue letters to Clark notifying her of the right to file a civil action under Title VII. (See id. at ¶ 7.) ...

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