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Vera L. Givens v. City of New York

January 10, 2012

VERA L. GIVENS, PLAINTIFF,
v.
CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, NEW YORK CITY COMMISSION ON HUMAN RIGHTS, COMMISSIONER PATRICIA GATLING, PAUL LABOSSIERE, MARK WILSON, WARDEN WILLIAM THOMAS, WARDEN CARMINE LABRUZZO, DEPUTY WARDEN DALE DOUGLAS, DEPUTY WARDEN DIANE CARN, CAPTAIN RONELL VISMALE, CAPTAIN CYNTHIA BARRETT, CAPTAIN GERALD VAUGHN, CAPTAIN PEDRO ROJAS, CAPTAIN JACQUELINE BORGES, DEPUTY PAMELA WALTON, C.O. PHYLLIS SMALL, C.O. KENNETH CHAPMAN, C.O. WILLIE GLOVER, C.O. CHANDRA LASONDE, EEO COMMISSIONER LUIS BURGOS, EEO INVESTIGATOR MIGDALIA ORTEGA, COBA PRESIDENT NORMAN SEABROOK, DEFENDANTS.



The opinion of the court was delivered by: P. Kevin Castel, District Judge:

MEMORANDUM AND ORDER

Vera Givens, plaintiff pro se, brings this action against the above-captioned defendants asserting discrimination on the basis of disability in violation of city, state, and federal law. Defendants City of New York ("City"), New York City Department of Corrections ("DOC"), Warden Carmine Labruzzo, and Equal Employment Opportunity ("EEO") Commissioner Luis R. Burgos (collectively "City Defendants") now move to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted. Defendant Norman Seabrook separately moves to dismiss on the same ground. Defendants New York City Commission on Human Rights ("CCHR"), Patricia L. Gatling, Paul Labossiere, and Mark Wilson (collectively "CCHR Defendants") move for judgment on the pleadings. For the reasons discussed below, the federal claims are dismissed as to all defendants, and the Court declines to exercise supplemental jurisdiction over the city and state law claims.

BACKGROUND

The facts below are taken from plaintiff's Amended Complaint and the record of her state administrative proceedings. The Court consults the state administrative record because plaintiff references both her termination hearing and her CCHR complaints-and names CCHR as a defendant-but does not fully describe the proceedings or their outcomes. See Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993) (court may "consider documents incorporated by reference or attached to the complaint as exhibits, documents the plaintiff knew of or possessed and relied upon in framing the complaint, and items of which judicial notice maybe taken"); Evans v. New York Botanical Gardens, No. 02 Civ. 3591, 2002 WL 31002814, *4 (S.D.N.Y. Sept. 4, 2002) (court "may take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment.")

Plaintiff began working for DOC in 2001. (Am. Compl. ¶ 3.) In May and September 2004, plaintiff injured her right foot and knee, necessitating physical therapy and medication. (Am. Compl. ¶ 4.) In January 2005, plaintiff asked for and received a day-tour accommodation. (Am. Compl. ¶ 5-6.) In February 2006, plaintiff asked for and received a transfer to a Bronx facility but was put on a rotating shift. (Am. Compl. ¶¶ 6-7.) In September 2006, plaintiff submitted a doctor's note "requesting" a full-duty morning tour. (Am. Compl. ¶ 8.) In October 2006, DOC briefly granted plaintiff a morning day tour but quickly revoked it. (Am. Compl. ¶¶ 9-12.)

Plaintiff then contacted the EEO office of DOC to complain about the withdrawal of her day-tour accommodation. (Am. Compl. ¶ 13.) The EEO office responded on October 30, 2006, that DOC could not accommodate plaintiff because plaintiff's documentation did not establish a disability. (Am. Compl. ¶ 14.) Plaintiff made numerous appeals for reinstatement of her accommodation to different officers of DOC, the EEO office, and the Correction Officer Benevolent Association ("COBA"), but she received no further accommodation. (Am. Compl. ¶¶ 15-20.)

In August 2007, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") and her first complaint with CCHR, alleging that DOC had discriminated against her by refusing to accommodate her disability.*fn1 (Am. Compl. ¶ 23; Minnah-Donkoh Decl. Ex. A, CCHR Verified Complaint, August 2, 2007 ("Ex. A").) Thereafter, several events occurred that plaintiff alleges were retaliation for her complaints.

First, on December 5, 2007, plaintiff's car was "vandalized" while it was parked in the lot of a "secured/camera monitored correctional facility." (Am. Compl. ¶ 21.) DOC concluded that the damage was done by the wind, but plaintiff alleges that DOC did not conduct an adequate investigation. (Id.)

Second, during much of her "sick leave," DOC ordered plaintiff to appear at the Health Management Division ("HMD"). (Am. Compl. ¶ 34.) She was required to report to HMD four days in one week in July 2008 and has been required to report even when the doctor she was scheduled to see was not present. (Am. Compl. ¶ 35.)

Third, in June 2008, on the basis of plaintiff's allegedly excessive absences and other alleged misconduct, DOC began disciplinary proceedings against plaintiff by filing "charges and specifications" against her before the New York City Office of Administrative Trials and Hearings ("OATH"). (Am. Compl. ¶ 31.) In September 2008, OATH held a hearing on the charges, at which plaintiff testified and presented documentary evidence. (MinnahDonkoh Decl. Ex. C, Report and Recommendation, OATH Index No. 393/09, Dec. 29, 2008 ("Ex. C"), at 1.) On December 29, 2008, Administrative Law Judge ("ALJ") Kevin F. Casey issued his Report and Recommendation recommending that petitioner's employment be terminated. (See id.) ALJ Casey concluded:

While respondent [Givens] attributed most of her absences to work-related injuries, that claim was not credible. In any event, her absenteeism is extraordinary. She missed nearly 140 days in 14 months. Respondent also violated Department procedure when she filed a complaint against a co-worker without waiting for her command to conduct a proper investigation. All of this evidence demonstrates that respondent cannot be relied on to perform her obligations as a correction officer. (Id. at 10.) On February 3, 2009, DOC terminated plaintiff's employment. (Minnah-Donkoh Ex. D, CCHR Determination and Order, September 30, 2010 ("Ex. D"), at 2.)

Meanwhile, on August 25, 2008, plaintiff had amended her CCHR complaint to add a charge of retaliation based on the events described above. (See Minnah-Donkoh Decl. Ex. B ("Ex. B"), ¶¶ 18-20.) On September 10, 2010, CCHR issued its Determination and Order after Investigation, which determined that "there is NO PROBABLE CAUSE to believe that Respondents [DOC] engaged in the unlawful discriminatory practices alleged," either by removing plaintiff's accommodation or by retaliating for her filing of complaints. (Ex. D. at 1.)

CCHR found that, as regards the accommodation, DOC had established a history of engaging in a "meaningful interactive process" with plaintiff and that DOC had offered her a steady tour- though not necessarily a steady day tour-in 2006 that would have met plaintiff's stated needs. (Id. at 2.) As regards retaliation, CCHR found nothing suggestive of retaliation in the damage to plaintiff's car, which had been investigated by the police, or in requiring plaintiff to appear at HMD. (Id. at 3.) Finally, DOC's decision to charge plaintiff and seek her termination was the result of "non-discriminatory business judgment" after plaintiff was absent from 47% of her scheduled work days in a 14-month period. (Id.)

Upon plaintiff's request, the Chair of the Commission reviewed the CCHR determination; she affirmed the No Probable Cause determination. (Minnah-Donkoh Decl. Ex. G., CCHR Determination and Order after Review, January 18, 2011 ("Ex. G").)

Plaintiff then brought an Article 78 petition in the Supreme Court of the State of New York, County of New York, for a review of the CCHR determination, and the Supreme Court concluded that the CCHR determination was supported by substantial evidence. Givens v. Gatling, Index No. 101969/2011 (N.Y. Sup. Ct. August 11, 2011) (unfiled judgment) (reproduced as Minnah-Donkoh Decl. Ex. N). The state court rejected plaintiff's argument that CCHR had inadequately addressed her retaliation complaint, holding that "DOC ...


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