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Richardeen L. Agard v. New York State

February 23, 2012

RICHARDEEN L. AGARD, PLAINTIFF,
v.
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; ANTHONY VANO, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; ANNMARIE DWYER, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY; GREGORY WILEY, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; THOMAS VARGHESE, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; JOSEPH M. MACCHIO, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; WILLIAM WELTHY, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; RICHARD GAMBINO, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; BRIAN MCCANN, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY; NONIE MANION, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY; AND ELLEN MINDEL, IN HER OFFICIAL CAPACITY AND INDIVIDUALLY; DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Plaintiff Richardeen Agard ("Plaintiff") commenced this action pro se on October 14, 2010. On May 6, 2011, Plaintiff filed her First Amended Complaint ("FAC"), asserting violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the New York State Human Rights Law ("NYSHRL"), and 42 U.S.C. §§ 1983, 1985. On June 30, 2011, Defendants moved to dismiss the FAC. Plaintiff, now represented by counsel, filed an opposition to the motion to dismiss and cross-moved for leave to file a Second Amended Complaint ("SAC"). For the following reasons, Defendants' motion is GRANTED, and Plaintiff's motion is DENIED.

BACKGROUND

Plaintiff is a 54-year old African-American woman who suffers from a speech impediment and walks with a cane. (FAC ¶¶ 17, 54-55.) She began her employment with Defendant New York State Department of Taxation and Finance ("DTF") in April 2001 as a student intern. (FAC ¶¶ 11-12, 18, 51; SAC ¶ 22.) After interning with DTF for approximately eight months and scoring 100 on the entrance exam, she was hired as an auditor. (FAC ¶¶ 12, 18, 51; SAC ¶ 22.)

Plaintiff asserts that beginning in 2005 her supervisor, Defendant William Welthy, began to harass her because he "was upset with [P]laintiff for talking to, or being associated with an employee that had a handicap or a disability"--Mateusz Nadolecki ("Nadolecki"). (FAC ¶ 56; see also SAC ¶ 27.)*fn1 DTF hired Nadolecki as an auditor in mid-2005 and assigned Plaintiff to train him. (SAC ¶¶ 28-29.) In December 2005, while Plaintiff was on vacation, she received a call from Nadolecki who stated that he had been fired after requesting an accommodation. (FAC ¶ 61; SAC ¶ 36.)*fn2 When she returned to work on or about December 14, 2005, Welthy was "very upset" with her for speaking to Nadolecki about his termination while she was on vacation. (FAC ¶ 62; SAC ¶ 41.) Welthy approached Plaintiff while she was having lunch with two other employees and stated: "If you go against the State, you will get it right here," and he pointed his finger at her forehead. (FAC ¶ 63; SAC ¶ 42.) Plaintiff responded stating: "That is a threat, and you cannot threaten me." (FAC ¶ 43; SAC ¶ 64.) Welthy, who was walking out of the room at the time, turned around and said, "I am going to make sure that you will never become a supervisor." (FAC ¶ 64; SAC ¶ 44.) Plaintiff reported Welthy's threat to Defendant Gregory Wiley who laughed it off as a joke. (FAC Ex. A; SAC ¶¶ 47-48.)

In March 2006, Plaintiff was notified that she was going to be subpoenaed to testify on behalf of Nadolecki at a hearing on a complaint he had filed with the Workers' Compensation Board challenging the basis of his termination. (FAC ¶ 110; SAC ¶ 53.) Fearful that Welthy would make good on his threats, Plaintiff contacted Michael Glannon from the Office of Counsel to express her concerns and hopefully ensure that her testimony in favor of Nadolecki would not negatively affect her future at DTF. (FAC ¶ 110; SAC ¶ 55.) Glannon suggested that Plaintiff prepare a written statement rather than testify. (FAC ¶ 110.)

Despite Glannon's suggestion, Plaintiff testified at Nadolecki's Workers' Compensation hearing on July 26, 2006. (FAC ¶ 72; SAC ¶ 57.) She testified that she and Nadolecki were close, often eating lunch together and taking breaks at the same time. (FAC Ex. G.) She testified that prior to his termination he did not have any problems with any of their co-workers. (FAC Ex. G.) She also described Welthy's threat and two other incidents involving Welthy: on one occasion he told a taxpayer that Plaintiff was the coffee-maker--that all she was good for was making coffee--and on another occasion he told Plaintiff that he hated her. (FAC Ex. G.) Finally, she described how, after Nadolecki's termination, she started to receive less favorable evaluations. (FAC Ex. G.)*fn3 DTF managers, Defendants Wiley, Anthony Vano, and Thomas Varghese, all attended the hearing and were noticeably upset when Plaintiff decided to sit with Nadolecki rather than with them. (SAC ¶¶ 59-62.)

Shortly after testifying, Plaintiff asserts that she was subjected to a variety of adverse actions in retaliation for supporting Nadolecki. First, in August 2006, Welthy failed to appear for a BCS hearing. (FAC ¶ 73; SAC ¶ 64.) A BCS hearing is conducted when a taxpayer challenges an audit assessment performed by a DTF auditor. Plaintiff had never attended a BCS hearing without a supervisor being present, as it was DTF's policy that the auditor's supervisor to attend. (SAC ¶¶ 65-67.) Upon returning to the office after the hearing, a different supervisor told her "that's what you get," in reference to Welthy's failure to appear. (SAC ¶ 68.) Then, Welthy intentionally refused to close Plaintiff's completed cases or assign her new ones. (FAC ¶ 101; SAC ¶ 69.) Plaintiff asserts that this negatively affected her performance evaluations because an auditor's productivity--which is measured in part by the number of cases he or she is able to close in a given period--is an integral part of an auditor's evaluation. (FAC ¶ 101; SAC ¶¶ 70-74.) She was also denied the opportunity to participate in training programs and recruitment activities--which she had attended regularly before testifying on behalf of Nadolecki and which also would have enhanced her performance evaluations. (SAC ¶¶ 75-84.)

In December 2006, she was interviewed by the DTF Deputy Inspector General, Defendant Richard Gambino, regarding Welthy's threats. (FAC ¶ 106; SAC ¶ 86.) Plaintiff felt that Gambino's informal investigation was inadequate, and she never received any update regarding the results of his investigation. (FAC ¶¶ 107-08; SAC ¶¶ 88-89.)

Shortly thereafter in January 2007, Plaintiff was transferred against her objections to a different team headed by Defendant Brian McCann--a close friend of Welthy. (FAC ¶ 74; SAC ¶¶ 94-95.) McCann, like Welthy, refused to close Plaintiff's completed cases or assign her new ones. (FAC ¶¶ 101, 109; SAC ¶¶ 99-100.) Plaintiff asserts that she was the only auditor that was transferred to a different team. (SAC ¶ 97.)

In May 2007, DTF announced that it was going to conduct interviews for supervisory positions. (FAC ¶ 75; SAC ¶ 103.) Plaintiff interviewed for one of the positions on September 17, 2007, at 3:15PM.*fn4 (FAC ¶ 80; SAC ¶ 104.) She was the last to be interviewed that day. (FAC ¶ 80; SAC ¶ 104.) The interview team consisted of Defendants Wiley, Vano, Varghese, AnnMarie Dwyer, and Joseph Macchio. (FAC ¶ 83; SAC ¶ 106.) Although they were not part of the interview team, Plaintiff asserts that Welthy and McCann both provided negative assessments of Plaintiff's performance to ensure that she did not get the promotion. (SAC ¶¶ 109-11.) On October 2, 2007, Plaintiff learned that she was denied the promotion. (FAC ¶ 86; SAC ¶ 114.) The two individuals who were promoted were both white females below the age of fifty. (FAC ¶ 94.)*fn5

At this point, Plaintiff's case load had dwindled so low as a result of McCann's failure to assign her new cases that Defendants and other DTF employees began to refer to her area of the office as the "stupid row." (FAC ¶ 102; SAC ¶¶ 124-27.)

In October and November 2007, Plaintiff began writing letters to the Equal Employment Opportunity Commission ("EEOC"), and on February 7, 2008 she formally filed a charge of discrimination ("EEOC Charge"). (FAC ¶ 100; SAC ¶ 120.) On the "Charge of Discrimination" form, Plaintiff checked boxes indicating that she was reporting discrimination based on race, age, and "other,"*fn6 and stated that the discrimination began in December 2005 and continued through October 2, 2007. (Docket Entry 8-3.) In a narrative attached to the form, Plaintiff describes being denied the promotion and asserts that it was because: (i) the promotions were reserved for younger employees; (ii) she was "single[d] out and threaten[ed] because [she] is an African American woman," and (iii) she testified against the state. (FAC Ex. A.)

Plaintiff asserts that the "pattern of discrimination"--specifically McCann's failure to close completed cases and assign new ones and Defendants' referring to her area as the "stupid row"--continued "unabated" after she filed the EEOC Charge. (SAC ¶ 121; see also FAC ¶ 101-02.) Plaintiff eventually emailed Wiley in the hopes that he would assist her in closing cases. (SAC ¶ 138.) McCann was allowing her cases to remain open for extended periods of time despite the expressed desire of those taxpayers to settle their claims and have their cases closed. (SAC ¶ 136.) However, Plaintiff's emails were never answered. (SAC ¶ 139.) So in late 2008, she emailed DTF's Field Audit Division and reported that McCann was not closing her cases in a timely manner. (FAC ¶ 113; SAC ¶ 140.) Plaintiff asserts that as a result of her email to the Field Audit Division, McCann reprimanded her with a counseling session and a written memo. (FAC ¶ 113; SAC ¶ 141.)

"Isolated from her co-workers, left to sit in the 'stupid row' so as to be publicly humiliated with barely any assignment [sic] to work on," Plaintiff asserts that her work environment had become "so unbearable and intolerable by Defendants' continual retaliatory adverse actions against her that she was constructively discharged in February 2009, when she submitted her letter of resignation to end her employment with DTF." (SAC ¶ 143; see also FAC ¶ 114.)

Plaintiff commenced the present action against DTF pro se on October 14, 2010. On May 6, 2011, Plaintiff filed her FAC, naming Vano, Dwyer, Wiley, Varghese, Macchio, Welthy, Gambino, McCann, Nonie Manion, and Ellen Mindel as additional Defendants in their official and individual capacities. The FAC contained eight cases of action: (1) discrimination on the basis of race and hostile work environment in violation of Title VII; (2) discrimination on the basis of race and disability in violation of NYSHRL; (3) retaliation against Plaintiff for asserting her rights under Title VII; (4) retaliation against Plaintiff for asserting her rights under NYSHRL; (5) equal protection; (6) First Amendment retaliation; (7) waste; and (8) conspiracy to interfere with her civil rights in violation of 42 U.S.C. § 1985.

On July 5, 2011, Defendants moved to dismiss. On October 19, 2011, Plaintiff, now represented by counsel, filed her opposition. She seeks to withdraw her first, second, fifth, seventh, and eighth causes of action and all claims against Dwyer, Varghese, Macchio, Manion, and Mindel. She also seeks leave to file a SAC to amplify the remaining claims and to add additional claims for discrimination for Plaintiff's associating with Nadolecki in violation of Title VII and NYSHRL.

DISCUSSION

As a preliminary matter, since Defendant does not object, the first, second, fifth, seventh, and eighth causes of action and all claims against Dwyer, Varghese, Macchio, Manion, and Mindel are hereby DISMISSED. Thus, the only remaining claims in Plaintiff's FAC are (1) her Title VII retaliation claim, (2) her NYSHRL retaliation claim, and (3) her First Amendment retaliation claim.

The Court will first address Defendants' motion to dismiss as it pertains to these three claims. Then, the Court will address Plaintiff's motion to add Title VII and NYSHRL discrimination claims related to her association with Nadolecki.

I. Motion to Dismiss First Amended ...


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