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Baity v. Kralik

United States District Court, S.D. New York

September 30, 2014

W. TERRELL BAITY, Plaintiff,

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[Copyrighted Material Omitted]

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For Plaintiff: Michael H. Sussman, Esq., Sussman & Wakins, Goshen, N.Y.

For Defendants: Eric Dranoff, Esq., Robert B. Weissman, Esq., Saretsky Katz Dranoff & Glass, L.L.P., New York, N.Y.

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Plaintiff W. Terrell Baity (" Baity" ), by his counsel, Michael H. Sussman, brings this Action against Defendants James Kralik (" Kralik" ) and the County of Rockland (" Rockland County" or " the County" ), alleging that Defendants discriminated against him on the basis of his race by terminating him from his position as a probationary corrections officer with the Rockland County Department of Corrections. Before the Court is Defendants' Motion for Summary Judgment. ( See Dkt. No. 26.) For the following reasons, Defendants Motion is Granted.


A. Plaintiff's Rule 56.1 Statement

" Local Civil Rule 56.1 calls for a summary judgment movant to submit 'a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried,' and for the opposing party to submit 'a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.'" Johnson v. IAC/Interactive Corp., __ F.Supp.2d __, 2 F.Supp.3d 504, 2014 WL 715666, at *1 (S.D.N.Y. Feb. 24, 2014) (quoting Local R. 56.1(a)-(b).) In responding to

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a Rule 56.1 statement, the party opposing the motion for summary judgment is " required by [the district's] Local Rules to specifically respond to the assertion of each purported undisputed fact by the movant and, if controverting any such fact, to support its position by citing to admissible evidence in the record." Risco v. McHugh, 868 F.Supp.2d 75, 86 n.2 (S.D.N.Y. 2012) (citing Local Rule 56.1(b), (d), and Fed.R.Civ.P. 56(c)). " If the opposing party then fails to controvert a fact set forth in the movant's Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule." Johnson, 2 F.Supp.3d 504, 2014 WL 715666, at *1; see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003). The purpose of this rule, and counsel's compliance with the same, is to assist the Court by narrowing the scope of the issues to be adjudicated and identifying the facts relevant and admissible to that determination. See Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001) (" The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties." ).

Plaintiff's Response to Defendants' Rule 56.1 Statement fails to comply with the spirit, if not the letter of the rule. ( See Pl.'s Resp. to Defs.' Rule 56.1 Statement (" Pl.'s 56.1 Resp." ) (Dkt. No. 35).) Many of Plaintiff's purported denials--and a number of his admissions--improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants' asserted facts without specifically controverting those same facts. ( See, e.g., Pl.'s 56.1 Resp. ¶ ¶ 32, 52, 56, 61, 75, 77, 78, 86, 88, 94, 95, 107, 108, 109, 115, 116, 130, 161, 162, 163, 169, 178, 179, 183, 191); see also Costello v. N.Y. State Nurses Ass'n, 783 F.Supp.2d 656, 661 n.5 (S.D.N.Y. 2011) (disregarding a plaintiff's responses to a defendant's Rule 56.1 Statement where the plaintiff responded with conclusory assertions or legal arguments). Furthermore, a number of Plaintiff's purported denials quibble with Defendants' phraseology, but do not address the factual substance asserted by Defendants. ( See, e.g., Pl.'s 56.1 Resp. ¶ ¶ 29, 40, 52, 56, 58, 101, 103, 106.) In other instances, counsel neither admits nor denies a particular fact, but instead responds with equivocal statements such as: " Admit, but defendant omits the balance of plaintiff's testimony," (Pl.'s 56.1 Resp. ¶ 75), " Admit, but note that she provided no counseling memorandum to plaintiff and never provided a copy of this document to the plaintiff," ( id. ¶ 86), " Deny. Plaintiff was interviewed one week before he commenced his employment and after he had passed his physical agility and psychological test and after he had been offered employ[]ment," ( id. ¶ 6 (in response to Defendants' statement about the date of Plaintiff's interview and the individuals who conducted the interview)), or " Deny as stated," ( id. ¶ 29). Some of Plaintiff's 56.1 statement responses include citations to evidence in the record, ( see, e.g., Pl.'s 56.1 Resp. ¶ ¶ 6, 29), however, responses that " do not point to any evidence in the record that may create a genuine issue of material fact[] do not function as denials, and will be deemed admissions of the stated fact." Risco, 868 F.Supp.2d at 86 n.2 (internal quotation marks omitted) (quoting Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 458 n.1 (S.D.N.Y. 2011); see also Costello, 783 F.Supp.2d at 661 n.5 (disregarding the plaintiff's responses where plaintiff failed to specifically dispute defendant's statements); Buckman v. Calyon Sec., 817 F.Supp.2d 322, 328 n.42 (S.D.N.Y. 2011) (noting that " 56.1 statements not explicitly denied by plaintiff are deemed

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admitted" ); Geoghan v. Long Island R.R., No. 06-CV-1435, 2009 WL 982451, at *6 (E.D.N.Y. Apr. 9, 2009) (" Since plaintiff's response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion." ). Lastly, several of Plaintiff's purported denials lack citations to admissible evidence or any evidence to support his contention, in violation of Fed R. Civ. P. 56(c) and Local Rule 56.1. ( See, e.g., Pl.'s 56.1 Resp. ¶ ¶ 4, 137, 138, 141, 155, 199); see also Holtz, 258 F.3d at 73-74 (explaining that where there are no citations to admissible evidence, or the cited materials do not support the purported undisputed facts in a party's Rule 56.1 statement, those assertions must be disregarded); Costello, 783 F.Supp.2d at 661 n.5 (disregarding a plaintiff's responses to a defendant's Rule 56.1 statement where the plaintiff failed to refer to evidence in the record). " Allowing a Local Rule 56.1 statement to substitute for the admissibility requirement set forth in Fed.R.Civ.P. 56(e) 'would be tantamount to the tail wagging the dog,'" and " would risk creating tension between Local Rule 56.1 and Fed.R.Civ.P. 56 . . . ." Holtz, 258 F.3d at 74 & n.1 (quoting Rivera v. Nat'l R.R. Passenger Corp., 152 F.R.D. 479, 484 (S.D.N.Y. 1993)).

Plaintiff's counsel's submissions related to the instant Motion fail to cure the deficiencies in Plaintiff's 56.1 Statement and instead impede the Court's attempts to determine which, if any, material facts are in dispute. For example, Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment (" Pl.'s Mem." (Dkt. No. 36)) contains no citations to the record, despite making a number of fact-based arguments. In addition, unlike the usual attorney affirmations, which merely attach copies of documents alleged to be relevant and admissible and identify those documents for the Court, Plaintiff's counsel submitted an affirmation that includes arguments and factual assertions. ( See Aff. of Michael H. Sussman in Opp'n to Defs.' Mot. (" Sussman Aff." ) (Dkt. No. 38).) This affidavit improperly attempts to introduce exhibits without any authentication, ( see Sussman Aff. ¶ 5), and further contains argument about how the Court should interpret these exhibits, ( id.¶ 8 (" An 'investment' of $12,000 is not very significant as against a county budget of over $680,000,000." )). See also Fed.R.Civ.P. 56(c)(4) (providing that an affidavit or declaration used to oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated). Accordingly, " [i]n resolving this motion, the Court has relied only on the exhibits to the affirmation that contain admissible evidence, and has not considered the improper assertions and arguments contained in the affirmation, or the exhibits to the affirmation containing inadmissible evidence." Risco, 868 F.Supp.2d at 86 n.2 (citing Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983) (" An affidavit of the opposing party's attorney which does not contain specific facts or is not based on first-hand knowledge is not entitled to any weight." )); see also Little v. City of New York, 487 F.Supp.2d 426, 433 n.2 (S.D.N.Y. 2007) (" The law is clear that an attorney's affirmation that is not based on personal knowledge of the relevant facts is to be accorded no weight on a motion for summary judgment." ).

Plaintiff's Affidavit also contains a surfeit of improper averments, including statements not based on Plaintiff's personal knowledge and conclusory statements that are nothing more than speculation. ( See, e.g., Pl.'s Aff. in Opp'n (" Baity Aff." ) ¶ 6 (Dkt. No. 37) (" We have progressive discipline at the jail for all officers and had

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any superior attached seriousness to these incidents, I would have been given a documented verbal counseling" ), ¶ 7 (" [Correctional Officer] Helchowski . . . developed a reputation for missing time during his probationary period . . . [Plaintiff] had a reputation for excellent attendance and punctuality." ), ¶ 8 (describing the evaluation of Correctional Officer Dillon as noting " that he is a young officer learning the job" and concluding that " this is not positive language" ).) See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 131 n.12 (2d Cir. 2004) (noting that district court was free to disregard hearsay statements and speculation in affidavits); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, *4-5 (S.D.N.Y. Jan. 24, 2007) (disregarding inadmissible portions of a plaintiff's affidavit in analyzing motion for summary judgment); Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 568-69 (E.D.N.Y. 1999) (same).

Regrettably, this is not the first time that a court in this courthouse has had to take the extraordinary step of admonishing Plaintiff's counsel concerning his obligations to follow the Local Rules of this Court, as well as several courts' Individual Practices. Plaintiff's counsel has been reprimanded for such conduct a number of times over more than seven years, including as recently as two months ago. See, e.g., Frawley v. Putnam Hosp. Ctr., No. 12-CV-3374, Dkt. No. 83, at 1-2 (S.D.N.Y. July 17, 2014) (ordering Plaintiff's counsel to re-file his client's response to the defendant's Rule 56.1 statements and to conform them with the court's Individual Practices); Risco, 868 F.Supp.2d at 86 n.2 (cataloguing the deficiencies with Plaintiff's counsel's Rule 56.1 response and " admonishing Plaintiff's counsel concerning his obligations to follow the Local and Individual Rules" of the court); Vero v. Pepsi Cola of the Hudson Valley, No. 10-CV-4112, Dkt. No. 17, *2 n.1 (S.D.N.Y. Apr. 3, 2012) (noting that Plaintiff's counsel " failed to support many of his denials with citations to the record," and further failed to comply with the court's Individual Practices); Tomlins v. Village of Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d 357, 361 n.2 (S.D.N.Y. 2011) (admonishing Plaintiff's counsel for repeated failure to follow the court's Individual Practices and declining to consider averments in plaintiff's 56.1 Statement that " [were] not supported by, or that were contradicted by, admissible evidence, or that [were] legal arguments under the guise of undisputed facts" (citations omitted)); Woods v. Newburgh Enlarged City Sch. Dist., 473 F.Supp.2d 498, 504 n.3 (S.D.N.Y. 2007) (admonishing Plaintiff's counsel for failing to cite to the record in his Memorandum and his Rule 56.1 statement, and for including material allegations not otherwise asserted or supported), aff'd sub nom. Woods v. Newburgh Enlarged City Sch. Dist., 288 F.App'x 757 (2d Cir. 2008); Copeland v. Sears, Roebuck & Co., 25 F.Supp.2d 412, 417 n.1 (S.D.N.Y. 1998) (disregarding a denial in plaintiff's 56.1 statement that was not supported by citations to admissible evidence). As Judge Ramos previously remarked about Plaintiff's counsel's filings in Risco, " [i]t simply will not do for counsel to say that genuine issues of material fact exist and then rely on the Court to go find them. Much more is expected from an experienced member of the bar of this Court and will henceforth be strictly required." 868 F.Supp.2d at 86 n.1. At long last, the Court urges Mr. Sussman to take Judge Ramos's warning to heart. At some point, more than an admonition will be appropriate.

Although the Court is not required to search the record for genuine issues of material fact that the party opposing summary judgment failed to bring to the

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Court's attention, Holtz, 258 F.3d at 73, the net result of Plaintiff's counsel's deficiencies has been to impose on the Court the burden of parsing the entirety of the record in the instant case to ensure that Plaintiff's claims receive thorough and just consideration. Therefore, for the reasons discussed above, in analyzing the instant motion, the Court has disregarded: (1) purported " denials" in Plaintiff's 56.1 Statement that do not actually deny or refute the specific facts asserted by Defendants, are not supported by citations to admissible evidence in the record, are contradicted by other admissible evidence in the record, or that are improper legal arguments; (2) improper assertions and arguments contained in Plaintiff's counsel's affirmation that are clearly not based on personal knowledge or the record; and (3) the improper portions of Plaintiff's Affidavit. However, the Court is " mindful that '[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.'" Johnson, 2 F.Supp.3d 504, 2014 WL 715666, at *1 (alteration in original) (quoting Giannullo, 322 F.3d at 140). Therefore, the Court has only relied upon uncontroverted paragraphs of Defendants' Rule 56.1 Statement where the record evidence duly supports Defendants' contentions.

B. Factual Background

Plaintiff is an African-American man who applied for a position as a corrections officer with the Rockland County Department of Corrections in either 2005 or 2006. (Decl. of Robert B. Weissman (" Weissman Decl." ) Ex. B (Excerpted Tr. of Dep. of Pl. W. Terrell Baity (" Baity Tr." )), at 18 (Dkt. No. 27).) On March 19, 2008 Plaintiff was interviewed for the position by Lieutenant Jill King and Captain John Liska, (see Dec. of Captain Jill King (" King Decl." ) ¶ 1 (Dkt. No. 30); Decl. of Captain John Liska (" Liska Decl." ) ¶ 4 (Dkt No. 29)), both of whom are Caucasian, (see Baity Tr. 22-23). King and Liska ranked Plaintiff second overall in a list of 24 candidates, including a number of Caucasian candidates, and recommended to Chief William Clark (" Clark" ) that Plaintiff be hired. ( See King Decl. ¶ 4; Liska Decl. ¶ 7.) Clark accepted King and Liska's recommendation and hired Plaintiff. ( See King Decl. ¶ 5; Liska Decl. ¶ 8.)

All new corrections officers in the Rockland County Department of Corrections are required to pass a two-year probationary period, during which time the individual works as an at-will employee, and after which a decision is made as to whether to hire the individual as a permanent corrections officer. ( See Weissman Decl. Ex. C (Tr. of Dep. of Captain William J. Clark (" Clark Tr." )), at 13; Baity Tr. 30.) Plaintiff began working as a probationary corrections officer on June 30, 2008. ( See Baity Tr. 23.) Plaintiff's performance reviews provided as part of discovery in this case, which date from September 2008 through September 2009, rate Plaintiff's performance as " Satisfactory" in all categories. ( See Baity Aff. Ex.1; Sussman Aff. ¶ 9.)

1. Gowins Incident

On the morning of September 23, 2009, Plaintiff was involved in an incident with an inmate, Alfred Gowins (" Gowins" ). ( See Baity Tr. 46-47.) The specifics of this incident, though immaterial to the instant case, are not entirely clear. In fact, an internal investigation of the incident by the Rockland County Bureau of Criminal Investigation determined, after interviewing the " [c]omplainants, witnesses and all parties involved" and an " extensive[] review"

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of the " surveillance tape," found that there was " no evidence to prove or disprove any violation of law." (Weissman Decl. Ex. K (Jan. 8, 2010 Report from Detective Barbera to Captain Conjura), at 1.) According to Plaintiff's September 23, 2009 incident report, which Plaintiff corroborated during his deposition in this case, ( see Baity Tr. 63), Plaintiff " told inmate Gowins . . . that he had court for the third time in about fifteen minutes . . . [and] that intake was waiting on him to get ready to go to court. (Weissman Decl. Ex. F (Sept. 23, 2009 Mem. from Baity to White (" Incident Report" )), at 1.) " Inmate Gowins then began to become hostile[,] [s]aying among other things 'I don't give a fuck if you're a C.O., you['re] still a bitch ass[']." ( Id.) Plaintiff handcuffed Gowins to take him to an intake holding cell and placed him in the " IV Room so [Gowins] could calm down and . . . get himself together." ( Id.) In the IV Room, Plaintiff removed Gowins's handcuffs. ( See Baity Tr. 58.) When Gowins was putting on his shoes, he said, " Just cause you're a C.O. I'm supposed to be scared" and " Whatcha wanna to [sic] do?" while approaching Plaintiff " in an aggressive man[ner]." (Incident Report at 1-2.) Plaintiff told Gowins to place his hands on the wall, but Gowins refused, then resisted Plaintiff's attempt to restrain Gowins. ( Id. at 2.) Plaintiff then reported that other officers entered the IV Room, " place[d] Inmate Gowins on the floor and handcuffed him." ( Id.) In his deposition in this case, Plaintiff stated that he and Gowins " were just wrestling," but that " [a]fter the incident with [Plaintiff] and [Gowins], [Gowins] got thrown to the ground . . . [and] may have injured himself then." (Baity Tr. 62.) The Initial Reportable Incident Report submitted to the New York State Commission of Corrections on September 23, 2009 indicated that Gowins " received injuries to nose and cheekbone while being restrained." (Weissman Decl. Ex. G, at 3.) Plaintiff testified that he had " hurt his back a little bit" during the incident and missed two days of work because of his injury. (Baity Tr. 66.) A video recording captured the incident, however, at various times in the recording, portions of Plaintiff's and Gowins's bodies were not visible or the men were entirely off-screen. ( See Baity Tr. 71, 77; Sussman Aff. Ex. 3 (video recording).)

On September 28, 2009 Gowins's fiancé e and his mother reported that Gowins had been assaulted by Plaintiff on September 23, 2009.[1] (Weissman Decl. Ex. H, at 1.) They further reported that Plaintiff had choked Gowins, " slam[med] his head against the wall," and, after he had been restrained, " kicked inmate Gowins in the face multiple times causing a fractured left ocular, fractured nose and fractured jaw." ( Id. at 1-2.) They reported that Gowins was " transported to the Nyack ER where his injuries were treated by staff" before Gowins was returned to jail. ( Id. at 2.) The same day, Detective Beckles from the New York City Police Department's Internal Affairs Unit contacted the Rockland County Sheriff's Department regarding the Gowins incident, noting that Gowins's mother " state[d] that Officer Baity and another Officer assaulted her son on 9/23/09," and that Gowins's mother alleged that Gowins " was kicked and punched in the face and taken to Nyack Hospital with

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a fractured jaw." (Weissman Decl. Ex. I, at 1.)

On October 2, 2009, the Rockland County Sherriff's Department received a fax from L'Tanya Watkins, Esq., noting that she represented Gowins " with respect to serious physical injuries that he incurred as a result of an assault which occurred at the Rockland County Jail on September 23, 2009. (Weissman Decl. Ex. J, (Letter from L'Tanya Watkins to Rockland County Sheriff Department (" Watkins Letter" )), at 2.) In the same letter, Ms. Watkins requested " the preservation of any and all video surveillance" related to the incident, and the production of " any written statements taken from Mr. Gowins as a result of this incident." ( Id.)

On September 21, 2012, Gowins filed suit against Rockland County, Plaintiff, and ten " John Doe" correctional officers in the District Court for the Southern District of New York, alleging violation of his civil rights and police brutality. (Weissman Decl. Ex. L, at 6.) In Gowins's complaint, he alleged that he suffered " severe physical injuries," including " a fractured orbital bone, fractured nose, and injuries to [his] neck and back." ( Id. at 5.) This suit, Gowins v. County of Rockland, et. al, Dkt. 12-CV-7154, is still ongoing. ( See Defendants' 56.1 Statement (" Defs.' 56.1" ) ¶ 63; Pl.'s 56.1 Resp. ¶ 63.)

2. Plaintiff's Co-Worker Conflicts

On December 30, 2009 Plaintiff, who was assigned to the front desk, called the Intake area and spoke to Officer O'Sullivan (" O'Sullivan" ) via stenophone, a device akin to a speakerphone, which can be overheard by others in the immediate vicinity. (King Decl. ¶ 8.) Plaintiff told O'Sullivan that Plaintiff was sending in a property release form for an inmate to release money to a visiting relative. ( See id.) O'Sullivan, who had been a corrections officer for twenty years, told Plaintiff that release forms having to do with money are processed through the front desk and that there was no need to send the form to Intake, as Intake has no control over the money. ( See id.) Plaintiff responded by telling O'Sullivan that Plaintiff knew the proper procedure and that " they'd been doing it [Plaintiff's] way for a long time" --for at least the two or three months that Plaintiff had been at the desk. ( See id. ¶ 9; Baity Tr. 96-97.) Plaintiff then hung up on O'Sullivan. (Baity Tr. 96.)

O'Sullivan called Plaintiff back, thinking that they had accidentally been disconnected, and tried to explain to Plaintiff that, even though all other property release forms go through Intake, requests for release of money go through the front desk, which is responsible for generating the appropriate checks. (King Decl. ¶ 9.) Plaintiff abruptly ended the conversation. ( See id. ¶ 9; Baity Tr. 97.) In describing the incident, Plaintiff stated that " O'Sullivan is a hot head and he spoke to me rude[ly]" and characterized the conversation as " an argument between co-workers" of the sort " [t]hat happens in any job." (Baity Tr. 96.) Plaintiff also stated that O'Sullivan was " yelling" and that Plaintiff " didn't have time to argue with him" because of the visitors he needed to assist. ( Id. at 97.)

King heard the conversations between Plaintiff and O'Sullivan and spoke with Plaintiff, asking him why he kept hanging up on O'Sullivan. (King Decl. ¶ 10.) King testified that Plaintiff denied hanging up on O'Sullivan, ( id. ¶ 10), though in Plaintiff's Affidavit, he acknowledges that he had hung up on O'Sullivan, (Baity Aff. ¶ 4). Regardless, King told Plaintiff that O'Sullivan was correct in the procedure he explained to Plaintiff and told Plaintiff that he should not have hung up on O'Sullivan and should not be rude to jail staff in the future. ( See King Aff. ¶ 10; Baity Tr. 98.)

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The next day, December 31, 2009, King and Sergeant Mueller (" Mueller" ) witnessed an incident in which a social worker asked Officer Ludwig (" Ludwig" ) to call an inmate down from Intake Housing for him. (King Decl. ¶ 12.)[2] Ludwig, who had 25 years of experience at the jail, called Intake Housing, where Plaintiff was working. ( See id.) According to King, " Ludwig barely got the inmate's name out of his mouth when [P]laintiff stated, 'He refused' and disconnected the stenophone . . . [before] Ludwig [had] the opportunity to even explain why the inmate was being requested." ( Id.) Plaintiff testified that he said " [the inmate] doesn't want to see the social worker," to which Ludwig " said he refused[?], and [Plaintiff] said, yes, he refused." (Baity Tr. 101.)

Mueller and King spoke with Plaintiff about his interaction with Ludwig.[3] Mueller asked Plaintiff why he cut off Ludwig mid-sentence before he was told who was requesting to see the inmate. (King Decl. ¶ 13.) Plaintiff claims to have explained that Ludwig " hangs up on us all the time." (Baity Tr. 102.) Mueller told Plaintiff that it was unprofessional to act that way.[4] Plaintiff also told Mueller that " hanging up on [Ludwig] was a joke, like he does to us." ( Id. at 103.) Plaintiff explained that he " didn't think it was something so bad where a grown man was crying or something. . . . I pressed a button, and that was it." ( Id. at 102-03.) King and Mueller recall Plaintiff becoming " very defensive," and telling them that " Ludwig was a 'crybaby' to complain" about the incident. (King Decl. ¶ 13.) They explained to Plaintiff that they had witnessed the incident personally, ( see id.), and Plaintiff told them that " going forward next time [Ludwig hangs up on him] then [Plaintiff would] complain[,] too." (Baity Tr. 103.) At the end of this discussion with Plaintiff, King recalls that " [P]laintiff started to mutter something under his breath about Officer Ludwig that we were unable to clearly hear." (King Decl. ¶ 13.) Plaintiff denies muttering anything at the end of this conversation. (Baity Aff. ¶ 5.)

On January 1, 2010, Muller submitted a memorandum to King that described the December 31, 2009 incident and noted that:

I was somewhat taken aback by Officer Baity's cavalier attitude in response to my counseling of him. Rather than " man-up" and agree that the acted inappropriately and unprofessionally, he

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spent his efforts deflecting and stating that he was joking. Officer Baity stated that Officer Ludwig is always joking but cannot take a joke in return. . . . After some additional conversation, Officer Baity did acknowledge he was wrong but he was still muttering under his breath about Officer Ludwig as I exited the post. I feel that the attitude shown by Officer Baity is less than desirable and something that we should collectively monitor going forward.

(Weissman Decl. Ex. N (Jan. 1, 2010 Mem. from Mueller to King (" Mueller Mem." )), at 1.)[5] The following day, January 2, 2010, King wrote a memorandum to Captain Conjura in which she described both the December 30, 2009 and December 31, 2009 incidents and concluded that: " I feel that these two incidents involving Officer Baity are of concern especially since this officer is still on probation and may be indicative of future problems. Officer Baity's probation period should be closely monitored." (Weissman Decl. Ex. M (Jan. 2, 2010 Mem. from King to Conjura (" King Mem." )), at 2.)

3. Plaintiff's Termination

Chief Clark had " final decision-making power" regarding " passing a [corrections officer] from [his or her] probationary period to permanent [corrections officer status]," though this decision is made " on the input from the supervisors" including the " [s]hift supervisors, lieutenants and the captains and the undersheriff." (Clark Tr. 14.) In some cases, Clark's boss, Undersheriff Tom Guthrie (" Guthrie" ) became involved in determinations concerning an officer's probationary period as well. ( Id. at 19.) Clark's usual practice involved providing about a month's notice to the captains, lieutenants, and the sheriff that an officer's probationary period was coming to an end, to allow staff members who had concerns about that officer to raise them with Clark, who could consider those concerns. ( Id. at 16-19.) Chief Clark testified that complaints filed by a correctional officer's supervisors are " taken into serious consideration" in determining whether to pass that officer from probationary to permanent status. ( Id. at 29.)

With respect to Plaintiff, Clark was ill and out of the office for most of Plaintiff's probationary period. ( Id. at 36.) In fact, Clark " didn't speak with [Plaintiff] much during his probationary period, but remembered that " any time [Clark] met him, [Plaintiff] was respectful, [and] looked great in a uniform." ( Id. at 35.) Accordingly, Clark testified that he did not make the final determination about whether to pass Plaintiff to permanent corrections officer, but rather " went by the recommendation of the captain [Conjura] and the undersheriff [Guthrie]." ( Id. at 36.) In addition " Captain Liska had part of a decision in it, but not much." ( Id.)

Captain Conjura (" Conjura" ) read the King Memo and Mueller Memo and testified that he characterized them, collectively, as a " serious incident." (Weissman Decl. Ex. D (Tr. of Dep. of Joseph Conjura (" Conjura Tr." )), at 88.) According to Conjura, " [we] need a cohesive working environment between staff at the jail[,]" and Plaintiff's behavior as described in the memoranda suggests " a tendency of behavior to be confrontational, not just with one officer but with two in a very relatively short period of time . . . . It goes against a good cohesive working relationship." (Conjura Tr. 88-89.) Clark remembered Conjura noting that " Baity had to go" because " we had an assault pending" that " didn't look good" " [i]n [their] own internal

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investigation," because " there were some complaints about Baity, [including about] his attitude," and because " he had an incident with a sergeant . . . which is taken very serious[ly] at [the] facility." (Clark. Tr. 37.) Accordingly, Conjura recommended that Plaintiff's probation be terminated before he became a permanent employee. (Conjura Tr. 57-58.) Clark and Conjura testified that Captain Liska also recommended Clark terminate Plaintiff. (Clark Tr. 38; Conjura Tr. 57.) Clark testified that Conjura and Liska " refuted" Clark's " high opinion of Mr. Baity" by ...

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