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Deborah L. Morales v. Nys Department of Labor

March 30, 2012

DEBORAH L. MORALES, PLAINTIFF,
v.
NYS DEPARTMENT OF LABOR, AND CNY WORKS, INC. DEFENDANTS.



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

This case arises out of an employment dispute between plaintiff Deborah L. Morales and her former employer, the New York State Department of Labor, Division of Employment Services ("DOL"). Also named as a defendant is CNY Works, Inc. ("CNY"), a non-profit that worked with DOL out of the same Syracuse, New York office to provide employment assistance to Central New York communities. In her amended complaint, plaintiff alleges that DOL intentionally discriminated and retaliated against her in violation of Title VII of the Civil Rights Act, and that DOL and CNY retaliated against her in violation of Title VI. Plaintiff is Caucasian and an American citizen, but she claims both defendants violated her rights because she associated with persons of Mexican, Cuban, Puerto Rican, Columbian, Dominican, Ecuadorian, and Honduran national origin. DOL and CNY move separately for summary judgment dismissing plaintiff's respective claims against them. Plaintiff has responded to both motions, and both defendants have replied.

II. BACKGROUND

A. The Parties

The parties do not dispute the majority of the facts leading up to the filing of this action, though they dispute the factual basis of plaintiff's numerous informal complaints and her characterization of defendants' actions. Plaintiff, who speaks fluent Spanish, obtained employment as a Spanish-speaking Labor Services Representative with DOL in February 2000. Among other things, DOL maintains jobs service offices around New York State that provide employment resources and basic job-search training to the public. Plaintiff first worked for DOL as a labor service representative at its jobs service office in Syracuse, New York. At deposition, plaintiff summarized her responsibilities as such: "Intake interviews, solicitation of information from customers related to employment background and experience, mentoring of job seekers with regard to marketing themselves as a commodity in the job market, which involved consultation on resume preparation and cover letter preparation, [and] coaching preparation for interview[s]." Plaintiff also trained customers to use Internet-based job search resources. The parties agree that DOL hired plaintiff in part because it expected her to use her Spanish language skills to provide these services to Spanish-speaking "Limited English Proficiency" ("LEP") customers. DOL did not permit plaintiff or other labor service representatives to contact most third parties on behalf of any customer, instructing them instead to refer customers to third parties when needed.

CNY is a Syracuse-based nonprofit that began working with DOL to provide access to employment resources in 2004, using funds made available to it and the State through the Workforce Investment Act, 29 U.S.C. § 2801 et seq. DOL moved its Syracuse jobs service office into a building on Franklin Street in Syracuse that CNY owned and operated. Their combined services constituted the Syracuse "One Stop" Center, one of several One Stop locations across New York State, where local residents could take advantage of the resources CNY and DOL offered in one visit. As part of the arrangement, CNY had control over customer intake, meaning that its employees generally determined whether customers should be diverted to DOL staff. The Syracuse

One Stop also featured a "resource room," where customers could go to use one of several public computers or to speak with a member of CNY or DOL staff.

After relocating to the CNY office space, DOL reassigned plaintiff's workstation to a cubicle in the resource room. Plaintiff no longer conducted intake interviews, but she continued to meet with customers to provide employment assistance and help using DOL resources. Plaintiff and other resource room staffers conducted group orientations to give an overview of resource room and One Stop tools to new customers who had already gone through an intake interview. Initially, plaintiff maintained her role as an LEP specialist, and even translated to help other staff members interact with Spanish-speaking LEP customers. Plaintiff emphasizes in her responses, supporting affidavits, and other record evidence, however, that her role in assisting LEP customers at the One Stop varied from day to day. As she put it at deposition,

[M]y role was redefined . . . in such a way as to provide an obstacle and hinderance [sic] to that category of customer. . . . It was touch and go. It was on a shoestring.

It was flying by the seat of your pants. It was as if I had a string tied to my nose and management yanked it in whichever di[rec]tion they wanted to when they wanted to.

There was not an established protocol. My role was designated as primarily equal to the duties of the unit that I was assigned to, and then if I was needed to "help a Spanish speaking customer," I was called on.

According to plaintiff, CNY and DOL staff use the same computer database to record customer information. The database, called the One Stop Operating System ("OSOS"), is also used at the other One Stop locations around New York. Plaintiff obtained through discovery a printout from OSOS, which she has filed under seal in support of her responses. The printout shows that staffers at One Stop locations around the state recorded national origin information for at least some Mexican, Cuban, Puerto Rican, Columbian, Dominican, Ecuadorian, and Honduran customers. Plaintiff's printout, however, does not specify which One Stop employee or office recorded the information.

Plaintiff describes the roles of many co-workers, supervisors, and managers from DOL throughout her response materials. Those most relevant to this action were: plaintiff's immediate supervisors Cheryl Kane, and after 2006, Sue Stucco; supervisor Colleen McBride; DOL managers Cindy Garrett and Betty Youmans; DOL regional administrators Valerie Seawell and Kelli Owens; DOL Assistant Director of Employee Relations Stacy Hopkins; and New York State Office of Inspector General investigator Ken Dippel. Plaintiff also interacted with many CNY employees, including Alvaro Valencia and Lori Wilson, CNY manager Manny Martinez, and CNY director Lenore Sealey.

B. Plaintiff's "Advocacy"

At her deposition, plaintiff testified that her "advocacy" for Spanish-speaking people in the Syracuse area is part of the "fabric of my personality and my character." As discussed below, plaintiff shifts between characterizing her advocacy as being on behalf of Spanish-speakers, citizens of Spanish-speaking countries residing in the Syracuse area, and more generally, Hispanic communities in the Syracuse area.*fn1 Plaintiff alleges that DOL and CNY violated her rights because of this advocacy.

Plaintiff offers evidence indicating that she spent a substantial amount of time at the Syracuse One Stop seeking to remedy perceived shortcomings in DOL and CNY's handling of LEP customers. Emails plaintiff offers in support of her responses show her, inter alia, inquiring about a possible discriminatory job posting residency requirement, offering an extensive critique of One Stop procedures for handling LEP customers in response to a set of proposed changes to DOL and CNY systems, warning supervisors that LEP customers "could not access workshops regarding resume preparation and interviewing skills," and forwarding her concerns about LEP procedures to upper management and other divisions within DOL. Plaintiff asserts that she complained to "the Regional Administrator of DOL, the Director and Assistant Director of DOL's Division of Employment Services[,] . . . the Director of the Division of Equal Opportunity Development[,] . . . the office of the Inspector General and the Office of Employee Relations." Plaintiff also filed formal complaints regarding LEP policies internally with the Office of Inspector General and externally with the Equal Employment Opportunity Commission.

The consistent thread across plaintiff's numerous complaints about LEP policies and procedures is that, in her view, DOL and CNY constructed barriers - often linguistic in nature - to prevent LEP customers from accessing their resources. For example, Plaintiff alleges that she volunteered to attend a "Latina Women's Conference" in Syracuse to conduct outreach to Spanish speaking communities on behalf of DOL, but that she was forbidden from doing so. Plaintiff asserts that DOL and CNY did not have many Spanish language versions of common forms, and that on one occasion they prevented her from putting Spanish language pamphlets in the lobby area. Plaintiff asserts that customers who looked Hispanic or who had Hispanic-sounding surnames were diverted to Alvaro Valencia, a CNY employee fluent in Spanish, even if those customers spoke English. Further, at deposition, Valencia admitted that he once stated "[i]f [a customer] don't speak English, we don't help them here [at One Stop]. They have to go to the Spanish Action League or to Jobs Plus." Plaintiff alleges that even though other DOL staff had recognized specialties, her Spanish language proficiency was not put to use as it should have been, and that procedures often forced LEP customers that were diverted to plaintiff to wait much longer than English-speaking customers to receive services. Plaintiff also provides substantial evidence that indicates she lobbied CNY and DOL to use paid interpreters and "Interpretalk" - a live, fee-based telephonic interpreting service - with more frequency.

Plaintiff's interpretation of the extent of her duty to assist LEP customers often brought her into conflict with DOL management. As detailed below, DOL criticized or punished plaintiff for exceeding the boundaries of her authorized duties in aiding LEP customers on several occasions, maintaining that she was only authorized to refer LEP customers to third parties. Some of these punishments resulted in disciplinary proceedings known as "interrogations" as outlined further below. Plaintiff admitted in her last interrogation that, in addition to providing referrals, she communicated with third parties on behalf of LEP customers. As plaintiff testified, she felt that helping LEP customers is "not the same ballgame" as helping English-proficient customers. Plaintiff's testimony indicates that she gave more assistance to LEP customers than she was expected to because she felt their language barriers demanded that she provide more assistance dealing with issues peripheral to securing employment. Plaintiff commented at one interrogation that the rule of thumb she was supposed to follow, "to do nothing different for Spanish speaking people that I would do for English speaking people," in her opinion is "illegal," given the greater needs of LEP customers peripheral to obtaining employment.

Plaintiff's involvement with the many Hispanic communities in Central New York was not limited to her service as a member of DOL staff. Plaintiff asserts in her response that she "is of non-Hispanic European descent," but has several "bi-racial/bi-national" Hispanic children by her second husband. Plaintiff was a volunteer/member*fn2 of the Eastern Farm Workers Association ("the EFWA"), "an organization," she testified at deposition, "with the purpose of organizing low-wage workers in order to facilitate access to resources . . . [and] establish[ing] networks of support in the community, support of the professional people, doctors, [and] lawyers" for the benefit of members. EFWA is comprised mainly of Hispanic, Spanish-speaking rural workers. Plaintiff served the EFWA as an interpreter, although she did also receive benefits like food and clothing through it. Plaintiff admitted at deposition and at her interrogations that she communicated with the Murphy Law Firm, which specializes in immigration, provided temporary housing to Hispanic farm workers in 2005, and was friends with "a lot of Mexican Nationals." At her depositions, plaintiff also testified that she conducted internet research on issues related to her claims and expressed an interest in the technical aspects of immigration law. Indeed, at her last interrogation, DOL Assistant Director of Employee Relations Stacy Hopkins commented, "I think anyone would agree that [plaintiff is] a terrific advocate for the people that [she] speak[s] with."

C. Plaintiff's Workplace Disputes

The parties' materials contain numerous references to conflicts spanning the duration of plaintiff's tenure with DOL. The parties agree on many of the essential facts surrounding each individual incident, but they dispute the relevance and proper characterization of each in light of governing legal principles.

1. Conflicts with DOL

DOL procedure provides supervisors with several formal tools for punishing alleged employee misconduct. Supervisors may choose to issue a formal "counseling memorandum" - a document memorializing a discussion between a supervisor and an employee in which the supervisor details the employee's improper behavior and outlines applicable rules of conduct. Counseling memoranda do not alter an employee's responsibilities or pay. DOL argues that counseling memoranda are "learning tools," whereas plaintiff insists they are punitive in nature.

For more serious infractions, supervisors may choose to initiate an investigation into an employee's conduct that may result in one of several punishments pertinent to the instant action: a counseling memorandum, a formal reprimand, a notice of discipline, or a notice of termination. The record is unclear on the procedure for initiating an investigation, but emails plaintiff offers in support of her responses indicates that a supervisor can request one at his or her discretion. The investigation includes an "interrogation," where management or the New York State Office of Inspector General questions an employee about an incident or infraction in the presence of union representatives. When an interrogation is deemed necessary, the employee is given several weeks' notice through a "notice of interrogation."

A labor agreement with DOL allows employees to dispute a punishment by filing a disciplinary grievance. Plaintiff submits a notice of termination in support of her responses indicating that filing a grievance first results in a meeting between plaintiff and management where the parties may negotiate a different punishment. If an employee is unhappy with the outcome of the grievance meeting, he or she may file for arbitration on the dispute with an arbitrator from the American Arbitration Association. The employee, represented by the union, and DOL attend a hearing before the arbitrator and have the opportunity to present physical and testimonial evidence.

Per the labor agreement, DOL and its employees are bound to whatever punishment the arbitrator deems appropriate.

The availability of these formal disciplinary tools does not preclude a supervisor's authority to reprimand an employee verbally, or to use his or her discretion otherwise in managing employee conduct.

a. Unprofessional Behavior

Plaintiff offers evidence that she came into conflict with her supervisors and co-workers concerning her role as a LEP specialist and the accessibility of DOL's resources to LEP customers "early on" in her tenure.*fn3 On March 11, 2004, DOL issued a counseling memorandum to plaintiff describing several incidents that occurred in early 2004. In the memorandum, plaintiff's supervisor Cheryl Kane describes plaintiff's conduct as "[u]nprofessional and uncooperative," in that she ignored the DOL chain of command in resolving an issue with a customer, refused a direct order to turn off a tape recorder she had been using to record conversations with her supervisors, and being confrontational with her supervisors. The counseling memorandum also states that DOL received a letter from a local employer complaining that plaintiff was "acting in a translator's capacity on behalf of a Spanish-speaking" customer, and so it instructed her "to only do for the Spanish speaking customers what [she] would do for the English speaking customers."

b. Chronic Lateness and Absences

The record indicates that plaintiff often failed to arrive at work on time, but only one period of tardiness resulted in its own formal disciplinary action. From November 17, 2005 until December 14, 2005, plaintiff was late nine times. Plaintiff also used or scheduled a significant amount of her annual and sick leave allowance during that period. Kane issued plaintiff a counseling memorandum on January 24, 2006, detailing plaintiff's absences and warning her about the danger of failing to reserve some leave allowances for unplanned emergencies.

Despite this counseling memoranda, plaintiff admits that she took at least five extended leaves of absence. Plaintiff took each extended leave after a work incident, and she characterizes them as being induced by her work-related stress. Emails between plaintiff and her supervisors indicate that plaintiff also took medication to treat depression, and that this may have played a role in her frequent tardiness.

c. The State Fair Incident

Plaintiff volunteered to work a DOL booth at the New York State Fair in late August, 2004. According to testimony plaintiff gave at an interrogation following this incident and again at a deposition related to this action, she brought her young daughter and her daughter's friend with her to the fair. In an email dated September 14, 2004, Tillman Wilkerson, a DOL staffer who worked the booth with plaintiff, stated that "she continually shook her head and flung he [sic] hair around throughout the shift while customers were present." Furthermore, when he returned from lunch,

Wilkerson states that "the booth was unattended." Plaintiff admitted at the interrogation that she left the booth to use the bathroom and to retrieve free handouts for her daughter and her daughter's friend. DOL then issued plaintiff a counseling memorandum based on what plaintiff described at deposition as the "false allegation" that she left the booth unattended.

Plaintiff received a notice of interrogation on October 29, 2004, and attended the interrogation two weeks later on November 15. DOL issued a counseling memorandum to plaintiff on December 15, 2004, acknowledging plaintiff's objections to the accusations and stating that DOL policy forbade her from leaving the booth unattended and from bringing her children into work.

d. Anna Johnson Incident

The next major incident occurred in the Resource Room on March 15, 2005, when plaintiff was assisting Anna Johnson, a non-LEP customer. As she described the incident at interrogation and at deposition, plaintiff and Johnson had a series of miscommunications regarding what services Johnson was interested in using. At some point Johnson handed plaintiff a floppy disk containing her resume. Plaintiff alleged that she then asked Johnson for her social security number, as she must do with all her customers, but Johnson refused. Plaintiff admitted that when Johnson demanded to have her floppy disk back, she stated that she would not return it unless Johnson gave her social security number. Johnson reached over plaintiff's desk, and plaintiff moved her hand to block access to the floppy disk. Plaintiff admits her hand touched Johnson's, but interrogation testimony shows that DOL accused her of scratching Johnson. In any case, plaintiff left to summon her supervisor who then resolved the situation.

In connection with this incident, plaintiff was interrogated on April 14, 2005, and issued a notice of discipline suspending her for two weeks without pay on May 26, 2005. Plaintiff filed a grievance on this punishment in accordance with her labor agreement, and in a written opinion dated March 3, 2006, an arbitrator reduced the punishment to a letter of reprimand, which was issued on April 19, 2006. Though it threatened future disciplinary action if plaintiff did not "provide fair and courteous treatment" to customers, it did not reduce her pay, change her responsibilities, or otherwise affect her employment status.

e. The Hospital Advocacy Incident

On October 6, 2005, there was a large propane explosion at a farm in Phoenix, New York, causing injuries to several Spanish-speaking farm workers. The EFWA summoned plaintiff to Upstate University Hospital in Syracuse, to work as a translator for the victims and their friends and family. Plaintiff admitted at the interrogation that she wore a badge at the hospital to identify herself as an EFWA worker. While at the hospital, plaintiff saw Ricardo Aguilar, a Rural Labor Representative with DOL. Plaintiff admits that she approached Aguilar to ask about immigration rules, and later followed up for details by email. At the interrogation, plaintiff insisted that her questions were born of a personal "interest in immigration." Plaintiff also admits, however, to have housed some number of workers displaced by the explosion.

Concerned plaintiff was offering official DOL services or revealing confidential DOL information to persons she worked with in her capacity as an EFWA member/volunteer, plaintiff's manager Kelli Owens contacted the New York State Office of Inspector General on October 17, 2005. Investigator Ken Dippel scheduled an interrogation of plaintiff for December 7, 2005 after researching the EFWA and investigating plaintiff's email history. Plaintiff first claimed that a miscommunication between her and co-workers caused her to miss a reminder phone call and then

later claimed she simply forgot the date. In any event, she failed to show up at the scheduled ...


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