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Tillery v. Nys Office of Alcohol

United States District Court, N.D. New York

May 30, 2014



LAWRENCE E. KAHN, District Judge.


This matter comes before the Court, following its transfer from the Southern District of New York, on a Motion to dismiss. Dkt. Nos. 14 ("Motion"); 28 ("Order"). Plaintiff Michele Tillery ("Plaintiff") filed this employment discrimination action against Defendants Laurie Felter ("Felter"), Stephen Mantor ("Mantor"), Michael Lawler ("Lawler") (together, the "Individual Defendants") and the New York State Office of Alcohol and Substance Abuse Services ("OASAS") (collectively with the Individual Defendants, "Defendants"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law ("HRL"), N.Y. EXEC. LAW § 290 et seq. Dkt. No. 1 ("Complaint"). For the following reasons, Defendants' Motion is granted in part and denied in part.


Plaintiff has been a New York state employee for 24 years. Am. Compl. ¶ 6.[2] Since May 2005, Plaintiff has worked for the OASAS Bureau of Capital Management ("Bureau") as a Facilities Planner 2 ("FP2"). Id . ¶¶ 8-10. FP2s in the Bureau are assigned to one of two "houses": the Facilities Evaluation and Inspection Unit ("FEIU") house or the Capital house. Id . ¶ 12. Plaintiff and all other African-American FP2s work in the FEIU house; the Capital house consists entirely of white male employees. Id . Most of the Capital house work is concentrated in New York City and the lower Hudson Valley, where Plaintiff and the other African-American FP2s live and work. Id . ¶ 21. However, most of the Capital house employees live and work out of the Albany and Buffalo field offices and require reimbursement when they travel to site locations for work. Id . Plaintiff has never been assigned duties consistent with the civil service description for the FP2 position. Id.

Plaintiff applied for promotions, both in the Capital house and in other state agencies, and was passed over. In 2006 and 2010, Felter, an OASAS supervisor, declined to promote Plaintiff and instead hired two individuals who had not previously held the title of either Facilities Planner 1 ("FP1")[3] or FP2. Id . ¶ 16. In April 2010, Plaintiff told Mantor, the FEIU house supervisor, that she was interested in an available position and submitted an application to human resources. Id . ¶ 18. Mantor told Plaintiff that he would expand the geographic coverage area for the position to include Long Island if she continued to seek the job. Id . In October 2010, Plaintiff and Mark Lyman ("Lyman"), a white, male FP1, applied for two open positions in the Capital house. Id . ¶ 25. Neither was selected; one position was filled with a white male from another state agency who had not previously worked as an FP1 or FP2, and the other was left vacant. Id.

Lyman filed an internal complaint of creed-based discrimination on March 4, 2011. Id . ¶¶ 26-27. The complaint sparked an investigation into Plaintiff's informal complaints of discrimination on the basis of race; Plaintiff was interviewed during the course of the investigation. Id . ¶¶ 28-30. Plaintiff alleges that human resources erred in not conducting separate investigations of the two complaints; she and Lyman did not intend to combine them. Id . ¶ 30. In its response to Lyman's complaint, OASAS stated that the promotion would have transferred Plaintiff to the New York City office, which did not have an on-site supervisor, and that Plaintiff was not "capable of managing" that responsibility yet. Id.

Plaintiff alleges that her actions then came under greater scrutiny and her workload reduced. On March 8, 2011, Mantor took Plaintiff into a counseling session and questioned her about the amount of time she had spent on an inspection the previous Friday. Id . ¶ 50. Over the next several months, Mantor and Felter held several additional sessions with Plaintiff, questioning her about previous timesheets and inspection itineraries and accusing her of "stealing time." Id . ¶¶ 51-60. On March 11, 2011, Felter reduced the frequency of outpatient-facilities inspections from annual inspections to biannual inspections for all members of the FEIU house. Id . ¶ 71. Felter then reassigned inspection areas for which each FEIU house employee was responsible. Id . ¶¶ 73-74. Plaintiff was the only inspector that received a catchment area corresponding to less than a field office. Id . ¶ 74. The FP1 who split some of the facilities from the Mid Hudson field office with Plaintiff was assigned 300 facilities, while Plaintiff was assigned 150. Id . This reduction in field work caused Plaintiff to make additional commutes to Albany and to take time off work. Id.

In April 2011, FEIU house management instituted a policy requiring employees to call the central office after finishing each inspection so that their time could be recorded. Id . ¶ 83. Plaintiff and Lyman filed union grievances, alleging that the new policy violated the collective bargaining agreement ("CBA"), which provided that employees would not be required to punch a time clock or record attendance. Id . ¶ 84. Although Plaintiff's grievance was denied, the policy was subsequently changed to require inspectors to simply record the time that they arrive and leave the inspection site. Id . ¶¶ 86-87. Plaintiff attributes this change to a secret grant of Lyman's grievance. Id . ¶ 87.

Defendants also stopped recognizing Plaintiff's 2005 medical accommodation, which allowed Plaintiff to use her personal vehicle or a larger rental car instead of an agency vehicle for official business. Id . ¶¶ 88-90. In March and July 2011, Mantor denied Plaintiff's requests for reimbursement for the use of her own vehicle. Id . ¶¶ 91-94. On July 19, 2012, Plaintiff requested leave to go home early, because she was sick and needed rest. Mantor offered Plaintiff a "side deal" to allow the request if Plaintiff agreed to take only half time pay. Id . ¶ 97. Plaintiff refused the request, and Mantor stopped signing Plaintiff's timesheets. Id . ¶¶ 97-98. Mantor also sent Plaintiff an email informing Plaintiff that she would be formally disciplined and that a new travel policy would be instituted for her. Id . ¶ 98. On August 7, 2012, Mantor and Felter refused to sign Plaintiff's timesheet and told Plaintiff that they would sign the timesheet only if Plaintiff charged 2.25 hours against her personal time accruals. Id . ¶ 100. Plaintiff refused, and Mantor responded by sending Plaintiff an email stating that he would withhold Plaintiff's paycheck if she did not charge 2.75 hours of accrued personal time instead. Id . ¶ 102. Mantor also began to accuse Plaintiff of abusing the travel policy in a manner such that other employees could hear. Id . ¶ 101. Plaintiff was out of work between August 17 and August 26, 2012.[4] Id . ¶¶ 102-03. When Plaintiff returned to work, Felter ordered Plaintiff to mark the days that she was out of the office as unscheduled absences. Id . ¶ 103.

Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in March 2012. Id . ¶ 36. The complaint alleged both race and sex discrimination. Id . ¶ 36. Plaintiff received a right to sue letter in October 2012. Id . ¶ 38. She then commenced this action in January 2013, filing her original Complaint in the Southern District of New York. Compl. Defendants then filed their Motion to dismiss; Plaintiff filed a Response and an Amended Complaint. Mot.; Dkt. Nos. 18 ("Response"); 19 ("Amended Complaint"). Defendants filed a Reply. Dkt. No. 21 ("Reply"). The Honorable Colleen McMahon, United States District Judge, transferred the case to the Northern District of New York, denied the portion of the Motion seeking dismissal due to improper venue as moot, and declined to reach the remainder of the Motion seeking dismissal for failure to state a claim.[5] Order.


To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Twombly, 550 U.S. at 556. "[U]nadorned, the-defendant-unlawfullyharmed-me accusation[s]" do not suffice. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, although a court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff, see Allaire Corp. v. Okumus, 433 F.3d 248, ...

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