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Steven Cox, Thomas Bingham, Edward Kalin, Michael Mccarty, and Robert v. Onondaga County Sheriff's Department

March 29, 2012


The opinion of the court was delivered by: Norman A. Mordue, U.S. District Judge



The present case involves a claim by a number of white or Caucasian Deputy Sheriffs employed by the Transport Unit of Onondaga County Sheriff's Department who contend they were discriminated against on the basis of their race. Specifically, these Deputies alleged that after they shaved their heads in solidarity with a fellow deputy who was undergoing chemotherapy for cancer treatment, they were accused by an African American Deputy of being "skinheads" and other African American employees of being racists. Plaintiffs alleged that they were unlawfully retaliated against for complaining of employment discrimination based on race pursuant to Title VII of the Human Rights Act of 1964, as amended, 42 U.S.C. 2000 et seq. ("Title VII"), and the New York Human Rights Law ("NYHRL"). Plaintiffs also alleged claims pursuant to 42 U.S.C §§ 1981, 1983, 1985 and 1988; the Fourteenth Amendment to the United States Constitution and Article, Section 11 of the New York State Constitution.


According to the allegations in plaintiffs' complaint, plaintiffs Steven Cox, Thomas Bingham, Michael McCarty and Robert Scott Feldman shaved their heads "in a show of friendship and comradery" to support fellow deputy and plaintiff, Edward Kalen, who had lost his hair as a result of undergoing chemotherapy treatment for cancer. Thereafter, Willis and several other African American deputies approached plaintiffs and inquired regarding the reason why plaintiffs' heads had been shaved. "Statements were made labeling the plaintiffs 'skin heads' and derogatory comments soon followed accusing the plaintiffs of anti-Black remarks and racial epithets." "Over the course of the next several months, this rumor gained force and promoted a dangerous work environment." Inmates threatened and verbally abused plaintiffs, and the African American deputies became distant and distrustful of plaintiffs. Plaintiffs were further subject to segregation at work, "and the reality that they would no longer be considered for promotion and/or raises." Willis's actions "fanned" this continuing conduct, which "caused a racially hostile and unsafe working environment."

On or about August 26, 2005, plaintiffs, along with an additional complainant, Lieutenant James Raus, made a complaint of racial harassment to the Onondaga County Sheriff's Department on a County Complaint "blue" form. Lt. Raus was the commander of the Transport

Unit and was responsible for initial investigations of harassment complaints filed by subordinate employees, including plaintiffs. According to defendants, Assistant Chief Wasilewski directed Captain Woloszyn to investigate the complaint filed by the plaintiffs. Captain Woloszyn discussed the complaint with Lieutenant Raus. According to Woloszyn, Wasilewski was angry that Raus had signed the complaint form as a complainant since he was a Lieutenant and should have investigated plaintiffs complaint in the first instance as a higher officer. Thereafter, Lieutenant Raus withdrew as a complainant. Although Raus was told to interview Deputy O'Dell Will, Raus had Sergeant Marshall interview Willis who denied any involvement with making any statements about plaintiffs or Lieutenant Raus being skinheads. Indeed, Willis stated that he knew that plaintiffs and Raus had shaved their heads in support of Deputy Kalin and had offered to help Kalin by doing chores around his chouse. Between September 29, 2005, and October 12, 2005, plaintiffs Cox, Feldman, Kalin, Bingham and McCarty filed complaints of discrimination with the EEOC.

On October 21, 2005, Captain Woloszyn submitted a memorandum to Assistant Chief Wasilewski regarding his investigation of the complaint made by plaintiffs submitted on the County form. Plaintiffs assert that no investigation was done by Wasilewski. In any event, as part of the response by the Law Department of Onondaga County to the EEOC, Wasilewski submitted a letter stating that the charges made by the plaintiffs had no merit and could not be substantiated. This statement was made on reliance on the investigation done by Captain Woloszyn. The letter also stated that investigation of the complaints by plaintiffs would also be referred to the Onondaga County Sheriff's Office Professional Standards Unit ("PSU") for review.

The PSU received the assignment to investigate the case on November 11, 2005. The matter was assigned to Sergeant Smith. On December 12, 2005, the EEOC, closed its investigation of plaintiffs' complaints and issued a notice of right to sue. However, plaintiffs did not file suit as authorized within 90 days of obtaining their notice of right to sue from the EEOC. Plaintiffs did not serve timely Notices of Claim against the Onondaga County at any time concerning their allegations of racial discrimination in the course of employment with the Sheriff's Department.

Sergeant Smith gathered various documents and interviewed all of the plaintiffs as well as other deputies in the course of his PSU investigation of plaintiffs' complaint. PSU issued two memorandums after its investigation. The first, dated, January 26, 2006, from Captain Peter Bailey to Undersheriff Warren Darby related to allegations that Captain Woloszyn had failed to ensure plaintiffs' claims were properly investigated and that he had submitted misleading documentation. Sergeant Smith conducted thorough interviews of all plaintiffs in the course of his PSU investigation in the presence of their Union Representative. When he spoke to Deputy Cox, Cox told Smith he had no direct knowledge of anyone calling him or the other deputies skinheads. Cox only knew that other deputies had told him that he and the other plaintiffs were being referred to as skinheads. Cox specifically told Smith that no one had called him a skinhead to his face.

During his interview with Sergeant Smith, Deputy Feldman also said that no one had called him a skinhead to his face. Feldman told Smith that a rumor had circulated that defendant Willis had referred to the plaintiffs as skinheads. Feldman told Smith that no inmates had accused him of being a racist or a skinhead since he had shaved his head. Deputy Kalin told Smith that he had no direct knowledge of anyone referring to him or any of the other deputies as skinheads. Kalin said he had been approached by some deputies regarding his shaved head but those deputies knew he was not a skinhead and they told him they were sorry that some people had started rumors about him because they knew he was being treated for cancer. One deputy whose name Kalin could not recall told him that defendant Willis was the person that had referred to the plaintiffs as skinheads.

Deputy Bingham told Sergeant Smith that no one ever accused him of being a skinhead. Bingham also told Smith that he was never approached by anyone who inquired as to why he had shaved his head and none of the inmates he transported called him a skinhead or a racist. Sergeant Smith averred that Deputy McCarty told him that him that no one accused him of being a skinhead or a racist to his face. However, McCarty reported that on August 24, 2005, Deputy Art Paul told him that defendant Willis had started a rumor back in the jail that the deputies that shaved their heads were skinheads. McCarty also said that two other African-American deputies asked him why he had shaved his head and after he explained that it was in support of Deputy Kalin, they asked no further questions. Deputy McCarty stated that the day after he spoke to Deputy Paul about the alleged rumor started by defendant Willis, he was moving inmates and one of the inmates asked him if he was "one of those skinheads." Deputy McCarty never responded to the inmate's inquiry and didn't report the incident to a supervisor because he claims that he never gave it much thought.

When Sergeant Smith interviewed defendant Willis, he stated that he was not aware of the skinhead issue until he was interviewed by Sergeant Marshall. Deputy Willis said he never said anything or suggested to anyone in the Unit that the plaintiffs were skinheads or racists. Indeed, defendant Willis said he was aware of Deputy Kalin's illness and although he was not willing to shave his own head in support of his fellow deputy, he had offered to do chores around Kalin's house and help out in other ways.

In the first PSU memorandum, Captain Bailey stated that Captain Woloszyn failed to conduct a through investigation of plaintiffs' complaints, that the report he submitted contained inaccurate information and that he failed to cooperate fully with the subsequent PSU investigation. As a result of said report, Captain Bailey concluded that Captain Woloszyn violated eight of the policies and procedures of the Onondaga County Sheriff's Office as contained in the Duty Manual. Captain Woloszyn was served with charges on February 10, 2006, which he denied. Pursuant to a Confidential Settlement Agreement, dated May 10, 2006, Captain Woloszyn was demoted from Captain to Deputy Sheriff and worked the A Watch (11 P.M. -7 A.M. shift) in the Justice Center until he was eligible to retire.

Captain Bailey authored a second memorandum dated January 31, 2006, pertaining solely to the conduct of plaintiffs McCarty and Cox. Specifically, the memorandum addressed the contradictions in the sworn statements made to the EEOC concerning alleged racist comments made by certain deputies concerning "skinhead" remarks, etc., as contrasted with the statements made to Sergeant Smith by these deputies during his PSU investigation. In the case of Deputy Cox, he stated in his verified complaint to the EEOC sworn to on September 29, 2005, that he had been "confronted by an African-American Deputy in [his] unit who accused [him] of belonging to the 'skinheads.' [The deputy's] continued remarks that [Cox was] a skinhead has resulted in other African-American employees believing that [Cox] was a racist." This statement was not consistent with what Deputy Cox stated during his interview with Sergeant Smith on December 20, 2005, in which he stated that no one had called him a racist or skinhead to his face.

With respect to Deputy McCarty, he also stated in his verified complaint to the EEOC sworn to on October 12, 2005, that he had been "confronted by an African-American deputy in [his] unit who accused [him] of belonging to the 'skinheads.' His continued remarks that [McCarty was] a skinhead has resulted in other African-American employees believing that [he was] a racist." This statement was also not consistent with what McCarty told Sergeant Smith during his interview on December 15, 2005. At that time, McCarty told Smith that "no one had accused him of being a skinhead or a racist to his face." Captain Bailey concluded that the statements made by the two deputies in their sworn EEOC complaints were not consistent with what they later told to Sergeant Smith when interviewed directly about the matter. Consequently, Bailey stated that Cox and McCarty had engaged in improper conduct in violation of the policies and procedures of the Onondaga County Sheriff's Office which specifically prohibited members from submitting a report or document which contains information known by the member to be inaccurate, false or improper. Captain Bailey left it up to Sheriff Walsh to determine whether charges should be brought against the two Deputies. Sheriff Walsh subsequently decided that no charges were warranted against Cox and McCarty.

On February 16, 2006, plaintiffs filed a second charge of discrimination with the EEOC alleging that they had been retaliated against by the Sheriff's Department after completion of the PSU investigation. Specifically, they claimed that they were threatened with disciplinary action for having allegedly provided false information in their first complaints to the EEOC. Having failed to file an initial lawsuit against defendants within 90 days of receiving their first Notice of Right to Sue from the EEOC, plaintiffs filed the present action on April 8, 2008. They asserted that they were victims of unlawful retaliation in violation of Title VII and the NYHRL for having complained of racial discrimination in their employment. They also alleged the various other federal and constitutional claims as set forth above.

In a previous Memorandum-Decision and Order, Senior Judge Neal P. McCurn of this Court granted in part and denied in part a motion to dismiss filed by defendant Deputy O'Dell Willis. The Court granted defendant Willis' motion to dismiss plaintiffs' Title VII claims on the ground that individuals such as Willis are not subject to liability under Title VII, but denied the motion to dismiss plaintiffs' NYHRL claims on the basis that they had adequately pled an "aiding and abetting" claim against him. The Court dismissed the claims under 42 U.S.C. § 1981 as against all defendants sua sponte. The Court also granted defendant Willis' motion to dismiss plaintiffs' claims for violation of equal protection under 42 U.S.C. § 1983 as well as the equal protection claim under the New York State Constitution. The County defendants along with defendant Woloszyn move for summary judgment dismissing the complaint in its entirety. Plaintiffs oppose defendants' motion and cross-move for summary judgment on their Title VII retaliation claims.


A. Applicable Legal Standard

Summary judgment is appropriate when there is no genuine issue with regard to any material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Stated otherwise, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When deciding a summary judgment motion, the Court must "resolve all ambiguities and draw all factual inferences in favor of the party opposing the motion." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).

B. Summary of Plaintiffs' Claims

Defendants have moved for dismissal of a number of claims which plaintiffs do not oppose in their motion papers. Specifically, plaintiffs do not oppose dismissal of the claims against any of the defendants in their official capacities. Further, plaintiffs do not object to dismissal of the NYHRL claim against defendant Onondaga County. Plaintiffs do not oppose the dismissal of the Title VII claims against any of the individually named defendants. Finally, plaintiffs do not ...

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