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Clark v. State, Office of The State Comptroller

United States District Court, N.D. New York

March 3, 2014

DONNA CLARK, Plaintiff,

Donna Clark Albany, NY, for the Plaintiff Pro Se.

KELLY L. MUNKWITZ, Assistant Attorney General, ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, Albany, NY, John Wapner Furman, Kornfeld Law Firm, KATHRYN C. COLLINS, ESQ., NEIL S. KORNFELD, ESQ., New York, NY, DAREN J. RYLEWICZ, ESQ., Civil Services Employees Association, Mark Unser, Denise Lawyer, Daniel Donahue, Civil Service Employees Association, Inc. Albany, NY, New York State Office of the State, Comptroller, Jeanine Dominique, Paul Moller, James Normile, Gary Degener, Robert McCauslin, Thomas DiNapoli, Ceilia Gonzalez, Melanie MacPherson, for the Defendants.


GARY L. SHARPE, District Judge.

I. Introduction

Plaintiff pro se Donna Clark commenced this action against defendants, [1] asserting claims pursuant to the Family and Medical Leave Act (FMLA), [2] Title VII of the Civil Rights Act, [3] Titles I and V of the Americans with Disabilities Act (ADA), [4] 42 U.S.C. §§ 1983 and 1985 for alleged violations of the First, Fourth, [5] and Fourteenth Amendments of the United States Constitution, the New York State Human Rights Law (NYSHRL), [6] and the Age Discrimination in Employment Act (ADEA).[7] (Compl., Dkt. No. 1.) Pending are defendants' motions for summary judgment, (Dkt. Nos. 141, 145, 151), and Clark's motions for sanctions, (Dkt. Nos. 142, 143). For the reasons that follow, defendants' motions are granted and Clark's motions are denied.

II. Background[8]

A. Factual History

Clark, a half Sicilian, Christian woman over forty years of age, was employed by the Office of the New York State Comptroller (OSC) as a Calculation Clerk I from June 30, 2005 to March 1, 2007. (Union Defs.' Statement of Material Facts (SMF) ¶¶ 1, 2, Dkt. No. 141, Attach. 2; State Defs.' SMF ¶ 1, Dkt. No. 145, Attach. 36.) Her job duties generally included delivering mail, sorting through documents, working on the computer, ordering and delivering folders, maintaining lists, searching for folders, and distributing work to supervisors. (Compl. ¶ 29.) She also was a member of CSEA.[9] (Union Defs.' SMF ¶ 34.) Clark allegedly suffers from several maladies, including post-traumatic stress syndrome, chronic pain, amnestic disorder due to trauma, post-concussive syndrome, cognitive deficits, photophobia, hip and lumbar injuries, headaches, word retrieval problems, and tangential speech patterns. (Compl. ¶ 23; State Defs.' SMF ¶ 5.) Medical evidence in the record also indicates that Clark has a diagnosis and history of "schizoaffective disorder."[10] (Dkt. No. 141, Attach. 4 at 40, 42, 47, 48.)

1. Accommodations Requests

At three different points during her employment, Clark requested certain accommodations. First, in 2005, following an incident in which she was assaulted and robbed near the OSC building, Clark requested parking privileges in the garage. (State Defs.' SMF ¶¶ 6, 9.) She was granted garage parking privileges, but they were intended to be short-term. ( Id. ¶ 10; Dkt. No. 145, Attach. 18 ¶ 3.a.; Dkt. No. 145, Attach. 19 at 1.) At the end of July 2006, Clark was advised that she needed to make other parking arrangements by the end of August. (Dkt. No. 145, Attach. 19 at 1.) She then submitted a request for disability parking, but after the OSC nurse asked Clark to provide her with documentation of her PTSD and agoraphobia, Clark refused to do so, and in October 2006, Clark was denied medical parking. ( Id. at 2-5.)

Second, in December 2006, Clark requested a soft chair due to spinal injuries. (Dkt. No. 145, Attach. 21 at 2.) Although the nurse responded to Clark's request and asked that Clark provide medical documentation, Clark first responded that she was "all set, " and then later provided a note from her doctor, but ultimately declined to fill out the reasonable accommodation request. (State Defs.' SMF ¶¶ 27-29; Dkt. No. 145, Attach. 21 at 3, 5-6.) Third, in January 2007, Clark complained that the light above her work station was too bright and requested a filter. (Dkt. No. 145, Attach. 18 ¶ 3.d.) A workstation assessment was completed, and the nurse directed that the light be changed and a filter added. ( Id.; Dkt. No. 145, Attach. 22 at 1-4.) In her complaint, Clark claims that, instead of a light cover, bright pink light lamps were installed, causing her to sustain "burns to [her] face, eyes, and chest area and permanent visision loss, " because she believed that the lamps were "Germicidal Light Lamps, " which emit radiation and "are not meant to be placed directly over a human being[] for exposure." (Compl. ¶¶ 44-49.)

2. FMLA Leave and Subsequent Events

Clark went on approved FMLA leave from October 26, 2006 through December 3, 2006. (State Defs.' SMF ¶ 20; Dkt. No. 145, Attach. 34 at 21.) In her deposition, Clark explained that she went on FMLA leave because she had not been feeling well, was extremely tired, was having constant nightmares and panic attacks, and was traumatized by "a gentleman that seemed to arrive each morning at the same time [she] did." (Dkt. No. 145, Attach. 34 at 19-20.) Prior to Clark's FMLA leave, a pilot program was implemented in another section of the bureau, by which clerks would no longer deliver folders; when Clark went on FMLA leave, OSC decided to pilot that program in her section.[11] (State Defs.' SMF ¶¶ 24-26.) Clark claims that when she returned from FMLA leave, some of her job duties, which included ordering and delivering folders, were eliminated. (Dkt. No. 145, Attach. 34 at 51.)

Not long after Clark returned from her FMLA leave, several of her coworkers began lodging complaints about her increasingly strange and disruptive behavior, which continued despite her supervisors meeting with her to discuss appropriate office behavior. (State Defs.' SMF ¶¶ 30, 36, 39.) Some of the complaints included that Clark screamed profanities over the telephone, was sending personal information about her coworkers by email to her home, and would eavesdrop on their conversations, take what was said out of context, and then complain about it. ( Id. ¶¶ 40, 42, 44; Dkt. No. 145, Attach. 16 ¶¶ 11(b), 11(c), 11(g).)

During this time, Clark alleges that her coworker, defendant Paul Moller, "while engaged in conversation said loud enough for [her] to hear, as [she] sat in [her] cubicle, ... All Italians are stupid.'" (Compl. ¶ 67; Dkt. No. 145, Attach. 34 at 63-64.) Clark claims that she advised defendant Robert McCauslin, a manager, about Moller's ethnic slurs. (Compl. ¶ 71; State Defs.' SMF ¶ 51.) After reporting the slurs to McCauslin, Clark claims that she witnessed McCauslin and Moller laughing, and gesturing "F*** Y**, '" in Italian." (Compl. ¶¶ 73-74; Dkt. No. 145, Attach. 34 at 63-64; State Defs.' SMF ¶¶ 52-53.) McCauslin and another manager, David Burmaster, then met with Clark and discussed the incident, at which meeting Burmaster explained that Moller's wife was Italian. (Compl. ¶¶ 76-78; State Defs.' SMF ¶ 51.) After this incident, an email was circulated to employees advising them of the importance of being considerate and respectful of their colleagues' pride in their heritage. (Dkt. No. 145, Attach. 17 ¶ 23.)

Between December 2006 and February 2007, Clark's supervisors met with human resources on several occasions to discuss how to manage Clark's increasingly disruptive behavior. (State Defs.' SMF ¶ 47.) On February 26, 2007, Mary Kent, one of Clark's coworkers, screamed at Clark, who was standing next to Kent's cubicle, "You are a f**king nut.... You are scaring people. You are a nut.'" ( Id. ¶¶ 49-50.) Soon thereafter, Clark met with defendant Jeanine Dominique, the Assistant Director of Labor Relations within OSC's Division of Human Resources and Administration, during which meeting Dominique grew concerned with Clark's erratic demeanor. ( Id. ¶ 48; Dkt. No. 145, Attach. 16 ¶ 2.)

3. Involuntary Leave

After her meeting with Clark, Dominique met with management, including defendant Melanie MacPherson (Whinnery), defendant James Normile, McCauslin, Burmaster, and defendant Gary Degener. (State Defs.' SMF ¶ 52.) At that meeting, management noted that many of Clark's co-workers had expressed concern with her behavior, and suggested that Dominique meet with them separately. ( Id. ) Dominique then met separately with several of Clark's coworkers, including, among others, Moller, Unser, and Kent; Dominique was struck by the consistency in their stories and in their fear of Clark. ( Id. ¶¶ 52-53.) On February 28, 2007, Normile, Whinnery, a member of the OSC Legal department, and Dominique then determined that Clark would be placed on involuntary leave pursuant to § 72.5 of the Civil Service Law[12] due to her increasingly troubling behavior and the seemingly genuine fear among her coworkers. ( Id. ¶ 54; Dkt. No. 145, Attach. 16 ¶ 14.) Clark was then provided with notice of her leave. (State Defs.' SMF ¶ 55.)

On March 12, 2007, Dominique wrote to the Department of Civil Service's Employee Health Services (EHS) and requested that Clark be evaluated to determine if any physical or mental conditions prevented her from performing her job duties. (Dkt. No. 145, Attach. 5; Dkt. No. 145, Attach. 16 ¶ 16.) In her letter, Dominique provided EHS with a list of troubling behavior that Clark exhibited. (Dkt. No. 145, Attach. 5 at 1-3.) Clark was provided copies of the letter and informed that her evaluation was scheduled for March 21, 2007. (Dkt. No. 145, Attach. 6; Dkt. No. 145, Attach. 16 ¶ 16.) Clark was evaluated by the EHS psychological consultant, defendant Dr. John Wapner, and EHS psychiatric consultant, Dr. Marcos Nieves. (Dkt. No. 145, Attach. 7.) Wapner then provided EHS with a report regarding his findings, which concluded that Clark "seems pre-occupied with her co-workers and would be unable to focus on her work" and that she "is unable to perform her job duties." (Dkt. No. 151, Attach. 4 at 4.) EHS's Medical Director, Dr. Richard Ciulla, then wrote to OSC and informed it that EHS determined that Clark was unfit to perform the essential duties of her job. (Dkt. No. 145, Attach. 7.) By letter dated April 16, 2007, Clark was informed of EHS's determination, and Clark appealed.[13] (State Defs.' SMF ¶ 58; Dkt. No. 145, Attach. 8.)

4. Section 72 Hearing

Clark's § 72 hearing began on January 10, 2008 and continued over seventeen days throughout 2008.[14] (Dkt. No. 145, Attach. 18 ¶ 4.) On the last day of the hearing, while cross-examining an EHS doctor, Clark repeatedly announced "[i]t's over" and "[y]ou're bought, Zonderman."[15] (Dkt. No. 145, Attach. 30 at 3-4.) Despite additional days remaining in the hearing schedule, OSC moved to have the hearing officially closed due to Clark's refusal to proceed; the hearing officer granted that motion. (Dkt. No. 145, Attach. 30.)

Additional briefs were submitted by the parties, and ultimately, in a thirty-five-page decision, the hearing officer found that OSC had probable cause to believe that Clark's continued presence on the job represented a potential danger to persons or property or would severely interfere with operations when it placed her on involuntary leave. (Dkt. No. 145, Attach. 31 at 35.) The hearing officer further found that Clark was physically and mentally unfit to perform her duties when she was placed on involuntary leave, and recommended that Clark remain on involuntary leave pursuant to § 72.1 of the Civil Service Law. ( Id. ) By Final Determination, dated June 4, 2009, OSC notified Clark that it was adopting the hearing officer's findings and recommendations. (Dkt. No. 141, Attach. 5 at 72-73.)

B. Procedural History

On or about December 3, 2007, Clark filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). (Compl. ¶ 4; Dkt. No. 141, Attach. 4 at 29-30.) In April 2009, after closing its case, the EEOC issued right-to-sue letters to Clark notifying her of the right to file a civil action under Title VII. (Dkt. No. 1 at 28-31.) Consequently, on June 23, 2009, Clark commenced this action against defendants.[16] Soon thereafter, all defendants filed motions to dismiss. (Dkt. Nos. 26, 30, 36.) With respect to the State defendants, the court granted the motion as to Clark's Title VII claims against the individual State defendants and Clark's ADEA claim, but denied the motion with respect to the remaining claims. (Dkt. No. 53 at 5-7.) With ...

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