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Singh v. New York State Dept. of Taxation and Finance

United States District Court, W.D. New York

November 29, 2012

Deeksha K. SINGH, Plaintiff,
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, Internal Revenue Service, Erie Community College, Mr. Louis J. Cercone, Jr., Brisbane Consulting Group, LLC, Ms. Evelyne O'Sullivan, Mr. Ajit Singh, County of Erie, Mr. William D. Reuter, Ms. Constance Marcus, Ms. Jacqueline Bogdan, and Larry S. Stolzenburg, Defendants.

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Deeksha K. Singh, Amherst, NY, pro se.

Stephanie Joy Calhoun, Office of the Attorney General, Adam W. Perry, David J. Sleight, Joshua Isaac Feinstein, Marissa A. Coheley, Bernard Schenkler, Jeremy C. Toth, Buffalo, NY, for Defendants.

JOHN T. CURTIN, District Judge.

Plaintiff Deeksha K. Singh commenced this lawsuit on May 9, 2006, as a putative class action against her former employer, the New York State Department of Taxation & Finance (" NYSDOTF" ), alleging discrimination based on her sex (female) and national origin (India) in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. §§ 2000e et seq. Item 1. Plaintiff was subsequently granted leave to amend the complaint by adding several new claims and defendants, including claims under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act (" FMLA" ), 29 U.S.C. § 2601 et seq., against plaintiff's current employer, Erie Community College (" ECC" ) and its Financial Officer William D. Reuter (referred to collectively as the " ECC Defendants" ), and the County of Erie. See Item 40.

By order entered October 25, 2011 (Item 107), this court adopted the " Decision and Order/Report and Recommendation" of Hon. Leslie G. Foschio, United States Magistrate Judge, entered on July 28, 2011 (Item 96), resulting in dismissal with prejudice of most of the plaintiff's claims. Singh v. N.Y. Dept. of Taxation and Fin., 2011 WL 3273465 (W.D.N.Y. Jul. 28, 2011), report and recommendation adopted by 865 F.Supp.2d 344, 2011 WL 5069393 (W.D.N.Y. Oct. 25, 2011). This left for further litigation only plaintiff's Title VII claim asserted in the original complaint against NYSDOTF, and the FMLA and ADA claims asserted in the amended complaint (as supplemented by additional facts alleged in plaintiff's proposed second amended complaint) against the ECC Defendants and Erie County. Following further discovery, these defendants have now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing the claims remaining in this action.[1]

For the reasons that follow, the motions for summary judgment are granted, and the case is dismissed.


The following facts are derived from the moving defendants' statements of fact on summary judgment (Items 150-2, 151-4 and 152-2) and supporting affidavits and

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exhibits, submitted in accordance with Rule 56 of the Local Rules of Civil Procedure for the Western District of New York.[2]

1. Plaintiff's Employment With NYSDOTF

Plaintiff began working as a Tax Auditor for the New York State Department of Tax and Finance in December 2001, assigned to the Income Tax Division in the Buffalo Division Office. Her initial appointment was to the position of Tax Auditor Trainee II, Grade 14, with a one-year probation period. Her work duties included use of the computer system and the software; determining appropriate candidates for audits; performing audits and preparing the accompanying paperwork; and attending training sessions. Her immediate supervisor was Michael Van Wagnen, who was responsible for supervision, training and evaluation of probationary auditors. See Item 150-2, ¶¶ 1, 28, 32-33.

In April 2002, plaintiff was promoted to the position of Tax Auditor I, Grade 18, based on her education (Bachelor of Science/Accounting) and prior work experience. This extended her probation period until April 2003. Item 150-4 (Van Wagnen Decl.), ¶¶ 15-16. On her first two Probationary Period Evaluation Reports, prepared and signed by Mr. Van Wagnen on July 26, 2002, and November 6, 2002 respectively, plaintiff received a summary rating of " Meets Expectations." See Item 57, pp. 68, 70; Item 150-2, ¶¶ 43-44. Plaintiff then took FMLA-approved maternity leave from approximately November 22, 2002, until June 19, 2003, which resulted in the further extension of her probationary period until December 2003. See Item 150-4, ¶¶ 21-22.

On her third Probationary Period Evaluation Report, prepared by Mr. Van Wagnen and signed on September 19, 2003, plaintiff received a summary rating of " Needs Improvement." Item 57, pp. 72; Item 150-2, ¶ 46. Mr. Van Wagnen noted deficiencies with respect to several specific performance factors, including quality of work (lack of attention to clarity in written materials); productivity (low number of case closures); personal work characteristics (reluctance to travel due to personal matters); problem solving/decision making (unfamiliarity with tax law); and distraction

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due to difficulties in her personal life. Id.

In a letter dated September 24, 2003, District Audit Manager Arthur J. Maloney informed plaintiff that the deficiencies outlined in her third Probationary Evaluation needed to be addressed immediately, and that she would be reevaluated on a regular basis to give her " every opportunity to improve her job performance." Item 57, p. 80. The letter continued:

I cannot over emphasize the need for immediate and substantial improvement in the deficient areas. I plan to meet with you, Mr. Van Wagnen and Mr. [Jorge] Reyes [Van Wagnen's supervisor] in 4-5 weeks to evaluate your progress. Without immediate improvement we will be left with no choice but to recommend termination of your probation.


On her fourth Probationary Period Evaluation Report, signed by Mr. Van Wagnen on November 11, 2003, plaintiff received a summary rating of " Unsatisfactory," with particular performance deficiencies noted in the areas of Personal Work Characteristics and Problem Solving/Decision Making. Item 57, pp. 74-77. Mr. Van Wagnen provided the following " Additional Comments:"

[Plaintiff] has not demonstrated sufficient progress in any of the deficient areas that were cited in the previous report. Actually in areas of Personal Work Characteristics and Problem Solving/Decision Making, [plaintiff]'s performance has slipped. Also, [plaintiff] has not demonstrated the independence and technical expertise that is required of a Tax Auditor I. Therefore, we are recommending that a second probationary period be served. This will provide sufficient time to evaluate [plaintiff]'s ability to perform the full duties of a Tax Auditor I.

Id. at 77.

On December 10, 2003, NYSDOTF's Director of Human Resources Management Deborah Dammer sent plaintiff a letter notifying her that:

Your supervisor has recommended, and I have approved, a second probationary period for you beginning December 12, 2003. In accordance with Civil Service Rules, you are being given a new assignment under a different supervisor. Your probation will last from 12 to 26 weeks. If warranted, however, your new supervisor can recommend termination of your appointment after 8 weeks. You will receive Probationary Period Evaluation Reports at 8, 16, and 23 weeks of the new probationary period.

Item 28, p. 175.

As memorialized in a series of emails, plaintiff met with Mr. Maloney on December 17, 2003, to discuss the arrangement for plaintiff's new probationary period. Mr. Maloney advised plaintiff that Jorge Reyes was designated to be her new supervisor with responsibility for the overall evaluation of her work performance, and that when Mr. Reyes was unavailable she should seek guidance from her previous supervisor, Mr. Van Wagnen. See Item 28, pp. 28-29. Plaintiff expressed her concerns about Van Wagnen's " unfair[ ]" treatment of her, and requested " another supervisor ... who will actually be interested in training me." Id. at 29. Mr. Maloney responded that, despite plaintiff's concerns, Van Wagnen was the appropriate choice to provide backup supervision given his qualifications, experience as a team leader, and familiarity with the case assignments. Id. at 28.

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On December 22, 2003, plaintiff tendered her written resignation to Mr. Maloney, stating as follows:

I hereby resign from the position of Tax Auditor I .... This resignation is due to your decision to not change my supervisor during my " second probationary period." Please accept my two-week notice. I will be ending my employment with [NYSDOTF] on January 2, 2004.

Item 57, p. 79. As documented in a letter to plaintiff from Associate Personnel Administrator James Bishop, plaintiff and Mr. Bishop had a telephone conversation the next day to discuss her resignation. Item 28, pp. 95-96. Mr. Bishop indicated in the letter that he told plaintiff he had discussed the matter with Mr. Maloney and they agreed that Mr. Reyes would be plaintiff's new supervisor, and that Mr. Van Wagnen would provide guidance " only in those situations where another team leader was not available ...." Item 28, p. 95. Mr Bishop offered plaintiff the opportunity to rescind her resignation, but plaintiff informed him " that [she] had been offered a new position which [she] ...

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