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Isaac Concey v. New York State Unified

September 30, 2011


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:


Plaintiff Isaac Concey alleges that the New York State Unified Court System, Office of Court Administration ("OCA"), and Margaret Beirne, the Principal Librarian of the Bronx Supreme Court Library, violated his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. (as amended), 42 U.S.C. §§ 1981 and 1983; New York State Executive Law § 296, intentionally inflicted emotional distress, and breached implied promises in his employment contract.*fn1 (Am. Cmplt. ¶ 1) Plaintiff alleges that Defendants "purposefully and intentionally discriminated against him based upon his race, color, and national origin and in retaliation for having opposed discriminatory practices." (Am. Cmplt. ¶ 3)

On October 27, 2009, Defendants moved for summary judgment on all of Plaintiff's claims, arguing: (1) that Plaintiff had failed to exhaust his administrative remedies; (2) that Plaintiff's Section 1981 and 1983 claims must be dismissed; (3) that certain of Plaintiff's claims are time-barred, because they were not raised in his New York State Division of Human Rights complaint; and (4) that, in any event, Plaintiff has failed to establish a prima facie case of unlawful discrimination, failure to promote, hostile work environment, or retaliation. (Docket No. 35) For the reasons stated below, Defendants' motion for summary judgment will be granted in part and denied in part.


Plaintiff is a Ghanaian-born United States citizen.*fn2 (Pltf. Rule 56.1 Stmt. ¶¶ 1-2) He has Master's Degrees in Information Science and Public Administration and has more than twenty years of experience working in libraries. (Id. ¶¶ 109-111) For twelve years prior to working for OCA, he worked for the Queens Public Library, including as senior librarian and branch manager. (Id. ¶111)

On August 16, 2001, OCA hired Plaintiff as a law librarian in the Bronx Supreme Court Law Library. (Def. Rule 56.1 Stmt. ¶¶ 1-2; Pltf. Rule 56.1 Counter-Stmt. ¶ 112) He worked in a probationary capacity until May 2005, when he received a permanent appointment as the result of passing a civil service exam. (Def. Rule 56.1 Stmt. ¶ 1; Pltf. Rule 56.1 Counter-Stmt. ¶¶ 115-17) As a law librarian, Plaintiff's duties included processing requests for books and other library materials, conducting public service reference work, and shelving, carrying, and moving books. (Pltf. Rule 56.1 Stmt. ¶ 113) He remains employed by the OCA in this capacity and was most recently assigned to the Bronx County Hall of Justice Library. (Pltf. Rule 56.1 Counter-Stmt. ¶ 108; Stadtmauer Dep. at 23)

In 2005, Plaintiff applied and was interviewed for the Principal Law Librarian position at the Bronx Supreme Court. (Pltf. Rule 56.1 Counter-Stmt. ¶ 118) Plaintiff reports being told by Administrative Judge Stadtmauer that he was "too new" for the position, although Judge Stadtmauer does not recall making this statement. (Id. ¶ 119; Stadtmauer Dep. at 11)

In February 2005, the OCA interview panel hired Defendant Margaret Beirne -- a white female -- for the Principal Law Librarian position, and she became Plaintiff's immediate supervisor. (Def. Rule 56.1 Stmt. ¶ 3) Plaintiff and Beirne had a difficult relationship from the outset, and their negative interactions account for most of Plaintiff's factual allegations. (Pltf. Rule 56.1 Counter-Stmt. ¶ 121)

In his Local Rule 56.1 Counter-Statement of Facts, Plaintiff recites dozens of discrete acts as the basis for his various discrimination claims. They are listed below in rough chronological order. Where Plaintiff provides no date for an incident, it is listed in the order Plaintiff presents the incident. Each event is presented with the level of detail supported by the evidence*fn3

* On one occasion, after Plaintiff had consolidated shelving space in the library, he complained of pains in his side. Beirne told him, "It serves you right," and said that Plaintiff should have waited for her to assist him. (Pltf. Rule 56.1 Counter-Stmt. ¶ 124)

* Beirne once told Plaintiff that he was "stubborn" for not waiting to prepare and distribute two books to the Self-Representation Department. (Id. ¶ 125)

* While Beirne was preparing pocket parts in her office one day, she asked Plaintiff: "Isaac, why did you move the books?" (Id. ¶ 126) Plaintiff did not know what she was referring to. (Id. ¶ 127)

* In August 2005, Defendant Beirne told Plaintiff not to use the microfiche room for his lunch breaks, which was his custom. (Id. ¶¶ 128-32; Pltf. Dep. at 54-57) When Plaintiff asked why he could no longer use the room for his lunch break, Beirne stated, "Boy, you don't have to use the microfiche room. It is for Ms. Flemming, the court officer." (Pltf. Rule 56.1 Counter-Stmt. ¶ 131) Flemming is a white court officer, not on the library's staff. (Id.; Pltf. Dep. at 65-66)

* Beirne referred to Plaintiff as "Boy" on two other occasions (Pltf. Rule 56.1 Counter-Stmt. ¶ 134): (1) during a transit strike when Defendant Beirne asked Plaintiff's co-worker Gail Anderson, "Where are the Boys?" (Id. ¶ 136), and (2) in December 2005, when Plaintiff returned to work after taking sick time, and approached Beirne to report his return. At that time she stated, "I hear you, boy." (Id. ¶ 138)

* Before the end of 2005, Plaintiff complained to the head of Human Resources about Beirne's attitude toward him. (Id. ¶ 139)

* In January 2006, Plaintiff received a "canvassing letter" inquiring whether he was interested in applying for the Senior Law Librarian position at the Bronx Law Library. Plaintiff responded to the letter, expressing interest in the position, but was never contacted about it. (Id. ¶ 160)

* On January 26, 2006, Plaintiff went to the mail room before 9:30 a.m. to retrieve the mail before the library opened to the public. Upon his return to the library, Beirne said to Plaintiff: "Isaac, you don't listen. Why did you leave the library? I'm trying to run a library and public service is important. There is something about management that you don't get. You said you were a good manager where you came from." (Id. ¶ 140-41)

* On January 26, 2006, Plaintiff told Chief Clerk Steven that "Ms. Beirne is antagonizing [me] by saying disparaging remarks." (Id. ¶ 143)

* On February 7, 2006, during a meeting with "two chief clerks and Ms. Anderson," Plaintiff said to Beirne that he "wasn't a small boy for her to disparage []any time she liked." (Id. ¶ 144) In this meeting, Plaintiff asked "How many black[s] do you see in the systems having . . . you[r] position or senior law librarian?" (Id. ¶ 146)

* After this meeting, Beirne told Plaintiff he was "lucky to have a job." (Id. ¶ 179)

* In late February 2006, Beirne submitted a performance evaluation of Plaintiff that Plaintiff alleges was inaccurate and "haphazardly done." (Id. ¶ 147) Beirne gave Plaintiff an "unsatisfactory" rating for General Responsibility category 6: "Produces work with a low frequency of errors. Work is neat and legible." She gave him a "needs improvement" rating for numerous professionalism categories including Professionalism #3: "Is respectful and courteous towards supervisors, co-workers and subordinates." (Id. ¶¶ 148, 150; Brewington Decl., Ex. S) For Time and Leave category 2, "Understands and follows procedures for using leave accruals," Beirne rated Plaintiff as "needs improvement." (Brewington Decl., Ex. S) Beirne rated Plaintiff's overall job performance as "Meets Job Requirements," however. (Def. Rule 56.1 Stmt. ¶ 91)

* When Plaintiff received his performance evaluation from Beirne, he signed it "under protest" and submitted objections to the evaluation. (Pltf. Rule 56.1 Counter-Stmt. ¶ 152; Brewington Decl., Ex. T)

* After Plaintiff submitted his objections, Beirne attached a Post-Interview Addendum to her evaluation stating that during her performance evaluation interview with Plaintiff, he acted in a "disturbing manner . . . grasp[ing] his gonads . . . strok[ing] and prob[ing] his gonads towards [her]." (Pltf. Rule 56.1 Counter-Stmt. ¶ 153)

* On May 8, 2006, Plaintiff wrote an email to the Chief Clerk of the Criminal Division disputing the accusations in Beirne's Post-Interview Addendum and stating that he believed the accusations were part of a "diabolical plan" to "continu[ally] . . . create a toxic and hostile work environment. It has been an unfortunate pattern of harassment . . . through casting aspersions, innuendoes, intimidation, threats, and unwarranted verbal abuse." (Id. ¶ 154; Brewington Decl., Ex. H)

* On October 5, 2006, Deputy Chief Administrative Judge Joan Carey informed Bronx Criminal Division Administrative Judge John P. Collins that "[t]he claims brought by Principal Law Librarian Margaret Beirne . . . alleging that [Mr. Concey] inappropriately touched himself during a meeting . . . have been reviewed and investigated by the Unified Court System's Office of the Managing Inspector General for Bias Matters, . . . [and she] concur[red] in the determination that the claims were unsubstantiated." (Pltf. Rule 56.1 Counter-Stmt. ¶ 156; Brewington Decl., Ex. B)

* On March 31, 2006, Plaintiff filed a complaint with the chief clerks regarding Beirne's behavior towards him in the workplace. (Pltf. Rule 56.1 Counter-Stmt. ¶ 182) Plaintiff complained that Beirne denied him access to one of the library phone lines. (Id. ¶ 183) Plaintiff stated: "I . . . entreat you again to conduct adequate investigation. . . . [T]his is no threat to the Administration but a genuine request to de-escalate this hostile working environment in the law library." (Id. ¶ 184) Plaintiff complains that he and his African-American co-worker -- Gail Anderson -- were denied access to the library phone lines, while Beirne and "Mr. Franklin" -- a white court attorney not on the library staff -- had such access. (Id. ¶¶ 185-86; Am. Cmplt. ¶ 73)

* On March 16, 2006, Plaintiff alleges that he was delivering books to a judge's chambers and the judge's secretary asked him "if [he] had brought them X-rated books." (Pltf. Rule 56.1 Counter-Stmt. ¶ 157)

* Plaintiff also claims that Court Officer Flemming told him: "Isaac, I just want you to know that I said favorable things when they called me down there. I told them you are very disciplined and a gentleman, that I don't think you would do such vulgar things as Ms. Beirne is alleging." (Id. ¶ 158)

* Plaintiff also applied for the Senior Law Librarian position in Utica, New York, but was not selected. (Id. ¶ 163; Pltf. Dep. at 237)

* Also in 2006, Plaintiff alleges that Beirne locked him and Ms. Anderson out of the office where they hang their coats and access ready-reference material for the public. (Pltf. Rule 56.1 Counter-Stmt. ¶ 172 (quoting Plaintiff's SDHR Cmplt., Brewington Decl. Ex. A))

* On June 4, 2006, Plaintiff requested a shorter lunch break so that he could leave work early to attend a medical appointment. He claims that Beirne retorted, "Do you want a favor? You want a favor from me when you sneak behind me to take an early lunch?" (Id. ¶175)

* Plaintiff testified that Beirne mimicked his accent on at least one occasion. (Id. ¶ 178)

* The OCA Employee Handbook states: "Generally, positions in the competitive class above entry level are filled by the promotion of individuals holding related, lower-graded competitive class positions for a specified period of time (usually one or two years)." (Brewington Decl., Ex. I at 7) The Handbook goes on to explain: "Every applicant who passes a competitive examination and meets the prescribed qualifications for the position is placed on an eligible list in rank order according to his/her final rating, adjusted by veterans' or seniority credits, if applicable. All eligible people with the same final score are equally 'reachable' on the list for appointments." (Id. at 8)

* On March 29, 2007, Plaintiff complained to Clerk Steven Clark and Judge Stadtmauer that he had not yet been promoted to a Senior Law Librarian position despite the fact that other "[l]aw librarians in other jurisdictions who even scored far lower and thus rank far lower [than Plaintiff] have the positions . . . and are about to get a second salary increase." (Pltf. Rule 56.1 Counter-Stmt. ¶ 187)

* On January 9, 2008, Plaintiff received an "Availability Inquiry" for Senior Law Librarian positions at the Civil Court of the City of New York and the Surrogate's Court in New York County. Plaintiff was interviewed for both positions. (Id. ¶¶ 188-90)

* On April 4, 2007, Beirne told Plaintiff not to allow members of the public into her office. (Id. ¶ 191) Plaintiff denied ever having done this, and on April 6, 2007, he requested that Judge Stadtmauer "advise [Beirne to] cease and desist from harassing [him] through false allegations." (Id. ¶¶ 192-93)

* On December 3, 2007, Beirne drafted a memorandum advising Plaintiff and Ms. Anderson that she had become aware of inaccurate bar code entries made at the Bronx Law Library and stating, in part, "Since both of you are responsible for cataloging, it is clear that you have not been following proper procedure." (Id. ¶¶ 194-95) Plaintiff claims that Beirne does not understand the bar code system. (Id. ¶ 196)

* On one occasion, an unknown individual referred to Plaintiff as, "This Tom." (Id. ¶¶ 198-99)

* In 2008, a friend of Beirne asked her, "Has Al Sharpton been here yet? Is the Bronx quiet now?" At about the same time, an OCA employee and a court attorney for one of the judges said to Beirne, "maybe we should bring Al Sharpton." (Id. ¶¶ 200-01)

* On February 24, 2009, Defendant Beirne had trouble gaining access to a certain computer. Beirne said to Plaintiff, "what have you done to it? To the computer?" and "what did you load on the computer?" (Pltf. Rule 56.1 Counter-Stmt. ¶ 168)

* On March 29, 2009, Beirne asked Plaintiff and Anderson not to access the library workroom through her office, but to instead step out of the library and re-enter the workroom via a stairwell area outside the library. (Id.) Plaintiff maintains that white staff -- not supervised by Beirne -- are ...

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