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Adams v. Ellis

October 5, 2012

ADREINA ADAMS, PLAINTIFF,
v.
ANTHONY ELLIS, EXECUTIVE DIRECTOR OF NYS DIVISION OF PAROLE; JOSE BURGOS, DIRECTOR OF HUMAN RESOURCE MANAGEMENT; MILTON BROWN, REGIONAL DIRECTOR; WILLIAM HOGAN, AREA SUPERVISOR; IRWIN DAVIES, ASSISTANT REGIONAL DIRECTOR; AND ROBERT OESER, EMPLOYEE RELATIONS OFFICER, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Adreina Adams, who has been represented by counsel throughout this proceeding, brought this action pursuant to 42 U.S.C. § 1983 alleging that the defendants, managerial officers of the New York State Division of Parole ("DOP"), retaliated against her in responsde to her union activities, depriving her of certain rights guaranteed by the First, Fourth, and Fourteenth Amendments. On July 1, 2011, defendants moved for summary judgment on plaintiff's First Amendment retaliation claim. On march 2, 2012, the Court granted defendants' motion, expressing no opinion on plaintiff's Fourth and Fourteenth Amendment claims. Adams v. Ellis, 2012 WL 693568 (S.D.N.Y. Mar. 2, 2012). On April 23, 2012, defendants moved for summary judgment on plaintiff's remaining claims. For the reasons discussed below, defendants' motion is granted.

BACKGROUND

I. Factual Background

The facts below are drawn from this court's first summary judgment opinion and references cited therein. See 2012 WL 693568. Defendant is a parole officer in the New York State Division of Parole ("DOP") and was at all relevant times assigned to the Manhattan 2 Bureau.*fn1 She is also an officer in the Public Employees Federation ("PEF"), the union that represents parole officers. Defendants were, at all relevant times, supervisory officers in the DOP: Jose Burgos was the Director of Human Resources Management for DOP; Milton Brown was the Regional Director for Region 1 of DOP, comprising Manhattan and the Bronx; Irwin Davies was Deputy Regional Director for Metro 1, located in Manhattan; and William Hogan was Area Supervisor for the Manhattan 2 Bureau.

Plaintiff publicly criticized certain DOP policy changes affecting parole officer duties and work requirements. She spoke at a PEF rally on July 8, 2005 (the "2005 rally") and gave testimony at a State Assembly hearing on DOP policies on January 11, 2006 (the "2006 hearing"). Defendants uniformly denied having any knowledge of plaintiff having participated in or spoken at the 2005 rally or at the 2006 hearing, with the exception of Hogan, who recalled Adams attending the 2005 rally but had no knowledge of her level of participation.

Plaintiff alleged that, sometime after the 2006 hearing, defendants took several adverse actions against her. She alleged that the Office of Professional Responsibility ("OPR") briefly audited her paperwork and, allegedly, the paperwork of all other attendees at the 2006 hearing, although there were no consequences to the alleged audits. Defendants uniformly testified that they had no control over or awareness of OPR audits. Plaintiff also alleged that one of her paychecks was "held up" along with those of other attendees. Plaintiff was unaware whether everyone in her bureau received paychecks late. Defendants uniformly testified that they had no control over the issuance of paychecks. Plaintiff also alleged that defendants ordered her Supervisory Parole Officer, Christopher Wrobleski, to "monitor [plaintiff's] paperwork." Plaintiff also alleged that a vacation request she made was "denied against office policy and procedures," and that since October 2006, Wrobleski has kept a list of all officers taking time off for union activities.

On October 25, 2006, plaintiff was involved in an altercation with a fellow parole officer and Local 236 Shop Steward, Milagio Plumey, which led to plaintiff's discipline and transfer. Although plaintiff described it as a "verbal altercation," Plumey alleged that plaintiff pulled a chair out from under her when she attempted to sit in it. Hogan, who had witnessed the altercation, corroborated Plumey's account. Other witnesses stated either that they saw Adams pull out the chair, that they heard a noise and saw Plumey falling, or that they saw nothing. Plaintiff never appeared at an interrogation as part of the official investigation into the altercation, due to her inability to secure counsel for the first scheduled interrogation and her alleged sickness on both of the make-up dates. Burgos executed a Notice of Discipline ("NOD") suspending plaintiff for nine months and reassigning her to the Brooklyn 5 Regional Office, concluding that plaintiff had pulled the chair from under Plumey and that it would be inappropriate for plaintiff and Plumey to continue working in the same office.

Plantiff filed a grievance over the NOD. Plaintiff's representative during the grievance process, Manuela Clemente, stated that DOP officials were uncooperative during the process, because they told witnesses they did not have to give statements to plaintiff, did not offer their witness statements for her review, and did not provide her a "copy" or "tape" from the grievance hearing. Clemente testified that these actions were contrary to the requirements of the Collective Bargaining Agreement ("CBA"). Review of the CBA indicates that the actions of the DOP officials were not inconsistent with the requirements of the CBA. The grievance process did not result in a consensual resolution, and plaintiff elected to go to arbitration. On March 17, 2007, the arbitrator issued an Opinion and Award finding that there was "just cause" for the NOD and finding "no evidence that DOP in any way instigated this action because of its displeasure with the local union leadership." The arbitrator found that Adams had created "reasonable doubt" as to whether she could be counted on to put aside any animus towards Plumey in the future. Therefore, the arbitrator upheld the permanent reassignment; however, he reduced the suspension from nine months to one week.

Plaintiff asserted that her penalty was "unprecedented," based on Clemente's testimony to the same effect. Clemente gave this testimony notwithstanding her knowledge of another officer who had been transferred to Buffalo. Clemente distinguished the Buffalo transfer because, she testified, the Buffalo transferee was transferred to be "re-trained" to "embezzle" for Director Ellis. Clemente also testified that officers guilty of more serious misconduct had received preferential treatment, citing as proof that an officer who had accidentally discharged her gun several times was given a "fantastic" administrative job. On the typicality of the penalty, Davies testified, and plaintiff agreed, that in Davies's three years as Deputy Regional Directory there were three NODs issued: one for Ms. Adams, one for a senior parole officer "who made some extremely inappropriate remarks to someone he supervised," and one for a parole officer arrested for possession of cocaine. Davies testified that the officer who made inappropriate remarks was suspended for one or two weeks and reassigned.

As regards her particular reassignment, plaintiff asserted that "Brooklyn 5 is a punishment bureau because it contains the biggest and most violent police precincts." She further asserted that, at Brooklyn 5, she was given an increased caseload, that the office location created a travel hardship, and that her fellow parole officers shunned her. Defendants asserted that plaintiff's transfer involved no change to her compensation, duties and responsibilities, or conditions of employment.

In June 2007, plaintiff wrote to defendant Brown and requested a "hardship transfer" back to Manhattan. In her request, plaintiff asserted that the increased travel time aggravated a back injury and that her new colleagues were shunning her, for which she blamed "the agency" for having sent an email to her colleagues containing a part of the arbitrator's decision.*fn2 Brown discussed the situation with Burgos and responded to plaintiff that they had decided to uphold the decision of a permanent transfer, and he directed her to address her concerns about her co-workers to her new chain of command.

II. Plaintiff's Claims

Based on the foregoing, plaintiff brought three claims. The first, pursuant to 42 U.S.C. § 1983, asserted that defendants violated her rights under the Equal Protection Clause of the Fourteenth Amendment by being "deliberately indifferent to the hostile work environment and harassment of plaintiff and other Union activists created by the defendants and other parole officers under their supervision . . . because of their Union activities and outspokenness." (Compl. ¶ 69.) The second, also pursuant to 42 U.S.C. § 1983, asserted that, as a result of the defendants' actions, plaintiff "ha[d] been unlawfully subjected to a hostile working environment and harassment in retaliation for exercising her First, Fourth and ...


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