The opinion of the court was delivered by: John T. Curtin United States District Judge
This is an employment discrimination and retaliation case brought pursuant to Title 42 U.S.C. §§ 1981, 1981a, and 1983 and the New York State Human Rights Law ("NYSHRL"), Executive Law § 296. The plaintiffs, employees of the New York State Office of Child and Family Services ("OCFS"),*fn1 allege that they were discriminated against and retaliated against because they cooperated with an investigation into discriminatory behavior committed by defendant Baines against a former co-worker. Specifically, the plaintiffs alleged that defendant Baines, among other actions, engaged in workplace sabotage in order to create grounds for discipline and instituted punitive scheduling changes. In a Decision and Order filed July 14, 2006, this court granted the defendants' motions for summary judgment and dismissed the complaint (Item 72). On appeal, the Second Circuit vacated the order and remanded, reinstating one of the workplace sabotage claims and several of the punitive scheduling claims against defendant Baines. Hicks v. Baines, 593 F.3d 159 (2d Cir. 2010). The court also reinstated the plaintiffs' section 1983 claim. In all other respects, the decision was affirmed.*fn2 Defendant has now moved again for summary judgment dismissing the remaining claims (Item 94). For the reasons that follow, the motion is granted.
As this is the second motion for summary judgment, familiarity with the facts of the case will be assumed. Briefly, from approximately 1995 until 2002, defendant was Facility Director for the OCFS and had supervisory responsibility for two facilities in the City of Buffalo, the Richmond Avenue group home, a residential facility, and the Evening Reporting Center ("ERC") on Cortland Avenue. He supervised the plaintiffs, who worked as Youth Division Aides ("YDA") in those facilities. In 1996, a white YDA named Mark Pasternak filed a formal misconduct complaint against defendant, who is African-American, alleging a campaign of racial harassment. In 1997, plaintiffs participated in the investigation of Pasternak's complaint. In June 1998, OCFS investigators found defendant guilty of misconduct. He was fined $2,000 and was reprimanded for his behavior. Plaintiffs then testified in a Worker's Compensation proceeding brought by Pasternak.
On May 5, 1999, plaintiffs commenced this action (Item 1). They alleged that, following their participation in the Pasternak matters, defendant engaged in acts of retaliatory conduct against them. On remand, there are several specific allegations that the court must address. First, plaintiffs allege that on or about July 31, 1998, defendant purposefully left a window ajar in the locked "computer room" of the ERC, thereby prohibiting the plaintiffs from setting the facility alarm as they did not have a key to the computer room. Plaintiffs allege that they were then reprimanded for failing to activate the alarm. Second, plaintiffs allege that defendant intentionally adjusted shift times, break times, and work locations and assignments. Specifically, plaintiff Hicks alleged that defendant shortened his off-duty time between shifts and required him to attend training sessions during his off-duty time. Hicks also alleged that defendant assigned him to work at the Richmond Avenue group home notwithstanding his seniority rights to work at the ERC. Hicks alleged that defendant assigned him to the Richmond Avenue group home knowing that it housed a juvenile inmate who had brought a frivolous excessive force claim against Hicks at defendant's prompting, and had threatened violence against Hicks' family. Plaintiffs also alleged that defendant repeatedly required them to work their shifts alone, putting them at risk with the troubled youth they served.
The Second Circuit further found that plaintiffs had sufficiently stated a section 1983 claim based on a violation of the Equal Protection Clause. Specifically, plaintiffs alleged that they were treated differently than other similarly situated employees in that they were retaliated against for their participation in discrimination investigations and proceedings.
In support of his motion for summary judgment, defendant submitted an affidavit with several exhibits, including excerpts from the official logbooks of the Richmond Avenue facility and the Cortland Avenue ERC. He stated that he was the Facility Director for the two facilities until January 2002, when he transferred to a different position at OCFS (Item 93, Att. 2, "Baines Aff.," ¶ 3).
Defendant stated in his affidavit that on July 31, 1998, the log books indicate that plaintiffs Smith and Melendez worked together at the ERC. Baines Aff., ¶ 11. They noted an open window at the beginning of their shift. Defendant stated that while he had keys to all the rooms in the ERC, he did not have the only key to the computer room. Id., ¶ 13. Unit Administrators, the Assistant Director, and the maintenance man all had keys to the rooms. Id. Defendant asserts that the plaintiffs could have easily rectified the situation but failed to do so. Id., ¶ 11. Plaintiffs have offered no evidence to substantiate that they were reprimanded for this incident. Id., ¶ 42.
Additionally, defendant stated that mandatory training sessions were usually scheduled by OCFS, not by him. Baines Aff., ¶ 17. He acknowledged that the plaintiffs may have been inconvenienced from time to time, as were the other employees who were required to attend those sessions. Id. Additionally, the hours of the facility were changed from noon to 8:00 p.m. to 1:00 to 9:00 p.m., and again to 2:00 to 10:00 p.m. Id., ¶ 18. These changes were instituted because the young people who reported to the ERC attended school and did not arrive at the facility until 3:00 or 4:00 p.m. Id. These changes angered the staff, including the plaintiffs, but were found to be in compliance with the collective bargaining agreement and were ratified by defendant's superiors in Albany. Id.
Defendant stated that staffing at the Richmond Avenue group home was required around the clock. Baines Aff., ¶ 21. The ERC was not a residential facility, and thus its staffing needs were less. Id., ¶ 24. Defendant stated that there were occasions when YDAs sometimes were alone for various reasons, including employee illness. Id., ¶ 26. However, administrative personnel were on site at both facilities throughout the day. Id., ¶ 27. Defendant has submitted the log books from the seven dates plaintiffs claim they were scheduled to work alone. The log books indicate that on April 3, 1998, plaintiffs Smith and Melendez worked together at the ERC (Item 93, Att. 1, Exh. C). On April 6, 1998, Melendez signed in at the ERC at 2:00 and left at 4:20 p.m. Id. Another employee, Harold Whatley, was present from 9:00 a.m. until 5:00 p.m. Programming at the ERC was cancelled, and plaintiff Melendez attended a grievance hearing at the Richmond Avenue group home from 2:00 until 4:20 p.m. Id. On April 11, 1998, plaintiff Smith was the only YDA present at the ERC. Id. He took the group of five children on a field trip to the movies. Id. On April 24, 1998, Plaintiff Melendez was on site at the ERC with Harold Whatley. Plaintiff Smith was on annual leave and plaintiff Hicks called in sick. Id. On May 8, 1998, plaintiff Hicks was the only YDA present at the ERC. He took the group of five children to an evening activity. Id. On May 9, 1998, plaintiffs Hicks and Smith worked together at the ERC. Id. Finally, on July 2, 1998, plaintiff Hicks worked at the ERC from noon until 8:00 pm. Harold Whatley was present until 4:00 pm, and plaintiff Hicks took the four children to a baseball game. Id. The log books indicate that none of the plaintiffs worked at the Richmond Avenue group home on any of the dates asserted.
Defendant stated that with regard to plaintiff Hicks' assertion that defendant scheduled him to work alone in the residential facility with a juvenile offender who filed a frivolous claim against him and threatened violence, defendant was not the supervisor of the Richmond Avenue facility in July 2002 when this incident allegedly occurred, having transferred to a different position in January 2002. At that time, he had no supervisory authority over the plaintiffs. Baines Aff., ¶ 36. Defendant also stated that shift schedules were open for bidding based on seniority. Id., ¶ 37. He was not able to manipulate plaintiffs' schedules as they assert so as to retaliate against them. Id., ¶ 39. Defendant stated that "[i]t is apparent from the litigation spanning almost twelve years that every action I took as a manager throughout the pertinent time period, 1995 - 1999 which was not exactly what the plaintiff's (sic) wanted for themselves became fodder for this alleged retaliation." Id.
In response to the motion, plaintiffs have filed an attorney's affirmation with exhibits (Item 102). Plaintiff's counsel neglected to file an opposing statement of material facts pursuant to Local Rule 56(a)(2), an affidavit in opposition to the motion in accordance with Local Rule 7(a)(3), or an answering memorandum of law pursuant to Local Rule 7(a)(2)(A). The exhibits in opposition to the motion include a copy of the investigative report into the allegations of misconduct by defendant against Pasternak (Item 102, Exh. A), a copy of a letter to defendant informing him of the agency's determination regarding those allegations of misconduct (Item 102, Exh. B), and a portion of defendant's deposition testimony, in which he stated that he was the individual who decided to change the programming hours of the ERC (Item 102, Exh. C, p. 20). Plaintiffs' counsel has assumed that the court will consider affidavits that were submitted in opposition to the defendants' previous summary judgment motion filed in 2005. See Item 102, ¶ 3.